Hutton v. Schumaker

Opinion — Field

Field, C. J. delivered the opinion of the Court Cope, J. and Norton, J. concurring.

The plaintiff avers in his complaint that in January, 1859, he was the owner and entitled to the possession of the premises in controversy, and in support of this averment proved on the trial that the parties through whom he traces title, in September, 1855, inclosed the premises with a brush fence from two to three feet in tight. No proof was offered that the plaintiff or his grantors ever subjected the premises to any uses whatever; and, on motion of the defendants, the Court ordered a nonsuit.

The mere inclosure of a lot with a fence of this character, without any other steps being taken to subject the property to any use, is not sufficient evidence of ownership or right of possession in the plaintiff to sustain ejectment against one subsequently entering upon the premises. The nonsuit was therefore properly granted.

Judgment affirmed.

Concurrence — Norton

Norton J.

What acts done upon land will constitute such a possession as will enable a party to maintain an action of ejectment against one afterwards entering, may depend upon the intent with which such acts were done, to be gathered from the acts themselves and other surrounding circumstances.

To maintain an averment that the plaintiff was the owner and entitled to the possession of the premises in question in January, 1859, he proved that another person, under whom he claimed, had, more than three years before that date, built a brush fence from two to three feet high, and having one or two gaps in it, around the premises. I think it cannot be said that, in the absence of any other proof, it was error in the Court to hold that the proof did not sustain the averment, and, in consequence, to nonsuit the plaintiff.