
    George Bartholomew v. Edward Edwards.
    Exclusive possession is sufficient to maintain trespass q. c. /. against one entering without license, or a legal title.
    In a case of common possession by two or more persons, the law adjudges the rightful possession to him who has the legal title; and no length of holding in such cqse can give title by posession, against such legal title.
    What kind of possession will give title to real estate, depends on the nature and condition of the property itself. An actual inclosure is the most obvious proof of possession, but itis not indispensably necessaryfor such purpose: cutting wood, or grass, or even the pasturing of cattle repeatedly and as a matter of exclusive right, upon uninclosed land, is evidence of possession, and if exclusive and adverse in their character to the rights of all others, and continuous for twenty years, will confer an absolute title by possession merely.
    Ro act, however, which does not amount in itself, to an assertion of right to the soil, can be evidence of possession of the soil. Thus the use of water for a mill, or any other privilege connected with the use of the water simply, is not of itself alone, evidence of title tq the land covered with it; because the right to use the water for such purposes, may well be in one, while the title and possession of the land covered with the wdter, subject to that easement, or privilege, may remain in another person.
    If a deed admitted in evidence, recites another deed as duly recorded, it will not be necessary to produce the original, nor the record of the recited deed, nor to account for the absence of it, to make the recital of it evidence, with whatever weight its connection with the other proof in the case may give it.
    The words “together with all and singular the mill, mill-dam, races, water-courses and other the appurtenances" contained in a deed for mill property, will not convey the bed of the mill-pond, or the land covered with the water of it.
    This was an action of trespass quare clausem fregit, and the trespass complained of was for breaking and entering • the close of the plaintiff, which had formerly been a portion of the bed or bottom of an old mill-pond (now. gone down), and erecting an hydraulic ram thereon. Both parties asserted title and laid claim by possession to the locus in quo; and it appeared in evidence, that the dam and pond which had been down for many years, laid uninclosed between the lands of the plaintiff and defendant; but the plaintiff alone had pastured and mowed upon it, which was the only use made of it, except occasionally to cut ice on it, when flooded and frozen over, for sale; a right which it was proved, both had claimed and exercised. The plaintiff asserted his title and possession to the whole of the bed of the pond to the upland on either side, whilst the defendant claimed that the thread of the stream flowing through it was the division line between them, and proved that the alleged trespass was altogether on his side of it. In adducing the legal title of. the plaintiff to the premises, much stress was laid on a lost deed, which was proved to have been in his possession some ten years previously by sundry witnesses, from one Grantham to Moore, an early grantor, under whom he claimed title, for the mill, mill-seat, and land covered by the water of the pond, and also on the fadt that, a subsequent deed offered in evidence on his behalf from Moore to one Caldwell, an intermediate owner of his estate, contained a recital of another deed, not produced, to Moore from One William Scott for four acres of the adjoining land in the following words: “ together with all and singular the mill, house, mill-dam, races, flood-gates, mill-wheels, stones, hoppers, bolting chests and cloths, water, water-courses, and other the appurtenances hut neither the contents of the lost deed, nor its formal execution, nor the names of the parties to it, were distinctly ascertained, or defined by the witnesses who had seen it. On behalf of the defendant it was proved in addition to the facts already stated, that he had, at the November Term of the Court, 1845, obtained a commission under the provision of the statute, for marking and bounding his land according to its true original location, on which the commissioners had duly ascertained and fixed the thread of the stream through the bed of the pond, as the true division line between him and the plaintiff, and that the same was afterwards duly certified, returned, approved and recorded at the en'suing term of the Court; and on which he relied to establish that as the true and lawful boundary between them. The present suit, however, had been instituted by the plaintiff within seven years after the return of the commission.
    
      J. A. Bayard: For defendant.
    - Trespass will lie on an exclusive possession." But in this case, the alleged trespass was committed in 1852; and the locus in quo had been adjudicated to the defendant prior to that time, by the commissioners to mark and bound his lands under the order of the Court, and the plaintiff was bound under the act of Assembly to contest that adjudication by an action at law. That adjudication was to be considered conclusive as to the boundaries established under it, and of the holding of the parties according to them, and the plaintiff to avoid the effect of it, must show a legal t'itle to the locus in quo, and could not rely on possession merely; because it was a judicial decision by a competent tribunal upon the immediate question in controversy between the parties, and when approved and recorded, although not absolutely conclusive until after the lapse of seven years, yet as a judicial decision on the question of boundary, and from the date of its approval by the Court, it would have the effect, and even a greater effect than a verdict in ejectment, and would change xand transfer the possession and constitute the holding according to the division line as ascertained and fixed by the commissioners. That the boundary thus established must prevail against him, unless the plaintiff had shown that the legal title was in him, either by the paper title which he had adduced, or by uninterrupted, adverse and exclusive possession for twenty years of the particular place in which the trespass complained of was committed. In the next place, was the recital in the deed from Moore to Caldwell of the deed from Scott to Patterson and Moore, evidence of the contents of the deed recited, and can the plaintiff give the recital in evidence, since the recital states that the deed recited is on record, without producing that deed, or the record of it, which had not been done ? And were the terms employed in that deed according to the recital, sufficient to convey the land formerly covered by the water of the pond, those words being “ together with all and singular, the mill, house, mill-dam, races, flood-gates, mill-wheels, stones, hoppers, bolting chests and cloths, waters, water-courses, and other the appurtenances?” None of the terms there used, could convey the land of the pond, or the soil covered by the waters of it; and it could not pass simply as appurtenant to the mill. The water and water privileges might pass as appurtenant to the mill; but the land could not.
    The evidence of the loss of the deed spoken of by several witnesses? was not sufficient, because there was no proof that a proper search had been made for it. Besides, the evidence of its existence as a deed prior to its loss, was altogether insufficient; because it should be shown that it was duly executed and was a valid and subsisting deed at the time of its loss; the parties to it, the premises embraced in it, the estate conveyed by it, whether for a term of years, for life, in tail, or in fee; the date and contents of it generally should be shown, before the plaintiff could be allowed to make any use of it for the purpose of establishing his title to the land in dispute. But on each and all of these matters, the witnesses examined had disclosed nothing, absolutely nothing—not even the names of the parties to the indenture with any certainty or precision, except, that it was for land covered by water, and was executed previous to the year 1800.
    , Where a party claims by possession merely, he must prove an actual possession by metes and bounds, and of every part of the land claimed by him. But the possession of' the land could not be acquired by the right to the use of the water, with which it was overflowed, because such, a possession might be perfectly consistent with the right of the party having the legal title to the land. And, unless the plaintiff had shown that he had mowed and pastured on the particular spot on which the hydraulic ram was erected by the defendant, exclusively and uninterruptedly, for a period of twenty years before the commencement of the action, he was not entitled to recover.
    
      
      Rodney: For the plaintiff, in reply.
    The marking and bounding of the premises by the commissioners, was only an ex parte proceeding, and could conclude nothing until after the seven years had elapsed without action; and besides, it could have no effect by the terms of the statute, as against an adverse claimant, so long as he continued in possession of the land in dispute. And even admitting that the plaintiff and those under whom he claimed, had originally but an easement, or a right merely to flood the land with water for the use of the mill, still it had been proved that after the dam and pond had been suffered to go down, the defendant was in possession of the bed of the stream and the locus in quo under color and claim of title to it, the deed of Kay to Moore, and from Moore to Gross, the former executed in 1828 and the latter in 1881, from whom the plaintiff derived his title of that date, being for “ 146 acres of land and land covered with waterand it was therefore incumbent on the defendant to deduce a clear legal title to the premises to defeat the present action. As to what would pass under a deed as appurtenant to a mill, it had been held that the grant of a mill with the appurtenances, will pass both the water and the piece of land used in connection with the mill; also the water privileges and the use of a head of water and race-way connected with and necessary to the mill. The mill includes the site, dam and other things annexed to the freehold and necessary to its enjoyment. 2 Hill. Abr. 139, 140.
    The words contained in the recited deed, which could not be produced, would convey the land covered by the water of the pond as appurtenant to the mill; and the recital of those words in the deed from Moore to Caldwell is evidence of the deed recited, though now lost and incapable of being produced, and estopped the party who made it and all claiming under him from denying it. 1 Salk. 286; 4 Com. Dig. En. B. 5, 93.
   The Court.

Harrington, Chief Justice,

charged the jury: The act which the plaintiff complained of in the case as" the trespass alleged by him, and the place where he assumed it was committed, was the erection of an hydraulic ram on what had once been the bed of an ancient millpond, known as Grantham’s, or Moore’s mill. The plaintiff alleges that he was in possession of the place at the time the trespass complained of was committed, and that the invasion of this possession by the defendant constituted him a trespasser, and entitled the plaintiff to a verdict without reference to his title, unless the defendant had shown on his part a good and valid legal title to it. The general principle of law in regard to the action was this, that the action of trespass, quare clausem fregit, lies for a wrong done to the possession of real property; and a plaintiff proving himself in possession merely of such property, and an entry upon it by the defendant, it would constitute the latter a trespasser, unless he could prove on his part a title to the premises, or a right otherwise, as by licerise or permission, to make such entry. If, therefore, the plaintiff had proved that he was at the time in possession of the place where the ram was erected, as the erection of it by the defendant was admitted, he would be entitled to recover damages for the trespass without further proof of title, unless the defendant had proved a better title to the premises, or a possession in common with the plaintiff of them. In the latter case the parties were both put upon their proof of title, and that party must prevail who had proved the legal title to be in him.' In a ease of common possession of land by both parties to the suit, the law adjudged the rightful possession to him who had the legal title, and no length of time of such holding could give a title by possession as against such legal title; but an independent, separate, and adverse holding, under an exclusive claim, continuously asserted and maintained for twenty years, was itself a good title. The nature or kind of possession which would give title to real estate, must of course depend, in some degree, on the nature and condition of the property itself. An inclosure is one mode of holding. 'Cutting wood or grass upon land was an act of asserted - possession; and even the pasturing of cattle repeatedly, and as a matter of exclusive right, on uninclosed land, was evidence of possession; yet these acts must be exclusive, in opposition to others, and continued adversely for twenty years, to confer an absolute title by possession merely. But no act that does not amount in itself to an assertion of right to the soil, could be evidence of possession of the soil. Thus the use of water in a mill-pond would not be evidence of title to the land which it covered, because such use of the water for mill privileges, or any other purpose connected with the water simply, and not with the land it covers, is not evidence of title to the land, or of that kind of possession which could give title to the land. In contemplation of law such a party could not own the water; all he could claim would he the right to the use of it; and to the accumulation and flow of it for the purposes indicated; and, not possessing the water which covered and occupied the land, he could not be said strictly to possess the soil covered by it; at all events, except for the special uses and purposes before stated. It was not an uncommon thing for the water privilege, and even the privilege of drowning land for'mill purposes, to exist in one person, and the right to the land as a resulting or remaining right, subject to the privilege, tb exist and reside in another; and in such a case the possessiqn would not be advez’se, hut consistent with the right of the owner of the soil covered by the water. The main question, then, in the case is, which of the parties had shown title tb the place formezly covered by the waters of the pond which had been abandoned for the purpose of a mill stream, and which was now claimed by both parties as land, to be used and enjoyed as such without any reference to mill privileges. If such a possession as had been befoz-e defined; that is to say, if an. actual, exclusive, uninterz’upted and adverse possession of the place in question for a period of twenty years since the mill-pond was abandoned and went down, had not been proved on the part of the plaintiff, then the parties would stand with regard tb it on their respective legal rights as they were presented in the paper titles exhibited by them.

The land in question at one time belonged, on the show of both parties, to the Granthams; and the plaintiff derives his title from Grantham through sundry intermediate deeds to Moore, Caldwell, Hinsey, Fennister,. Kay, Moore, Gross, and Mary Bartholomew. The defendant, on the other hand, claimed title under the will of Jacob to Isaac Grantham, and the will of the, latter to Thomas and Isaac Gr. Jacquett, the sheriff’s sale of their property to McDowell, and the sheriff,’s sale of the property of the latter to the defendant. All these title-papers had been exhibited in evidence, together with the plots and pretensions of the parties, and the lines of the deeds as respectively claimed by them; and it would be for the jury to say, from the proof before them, whether the lines of either or any of the deeds included the land in controversy; and, if so, to which of the parties, the place where the trespass is' alleged to have been committed, belonged, according to the deeds shown and the lines located on the plots.

But the court was called on to remark upon the con- - struction and effect of some of the deeds, the first of which was the one recited in the deed from Samuel Moore to James Caldwell, of the date of 1792, purporting to be from Isaac Grantham to Scott and Patterson, and which was supposed to refer to the place in dispute. That, however, was a question of fact to be decided by the jury. If it did not, of course the force and effect of it was of no consequence in the case. ' But, supposing the four acres embraced in that deed to include the premises in question, two objections had been taken to it by the counsel for the defendant; the first of which was that the deed itself being of record, as the recital states, the record should have been produced, or its absence accounted for, before the recital, which was only secondary evidence of it, could even be admitted to be weighed or regarded by the jury; and in the second place, admitting that the recital was evidence of the deed, the terms employed would not convey the land formerly covered by the water of the pond. As to the non-production of the record itself, it is open and subject to remark as a fact affecting the force and perhaps the correctness of the recital in this respect; but still the recital is in evidence, introduced by the regular admission of the deed which .contained it, and it would be for the jury to give it whatever weight they might consider it entitled to under the circumstances. In regard to the other objection, the terms employed in the deed according to the recital were, “ together with all and singular the mill, house, mill-dam, races, floodgates, mill-wheels, stones, hoppers, bolting chests and cloths, waters, water-courses, and others the appurtenancesand it was the opinion of the Court that, under these recited words, the title to the bed of. the pond, or the soil occupied by the water of it, would not pass. That might appear to some as a refined distinction; it was sustained, however, not only on legal principles, but was vindicated by reason and common practice. The conveyance of an estate in, or title to the land, and the grant of an easement or privilege connected with or in regard to land, are different things. The latter might possibly be said to be appurtenant to the former in some cases, but the land could never be said to be appurtenant to the latter; and unless the terms employed were proper and sufficient words to include and transfer the title to the land, it would not pass by the conveyance, whatever rights or privileges might otherwise be granted by it. There were no words employed in the recital which could operate to convey the ground covered by the pond.

Another deed had been referred to in the testimony of several witnesses, upon which the Court had been asked to charge as matter of evidence. It was alleged by the plaintiff that there was a lost deed from a person by the name of Grantham to a person by the name of Moore, relating to the premises in question, and which conveyed title in the land formerly covered by the pond to a party under whom he claimed. That deed had not been produced; but it was admissible to supply the loss of it, by proving first, its existence, secondly, its destruction, or loss, thirdly, its contents—its whole contents—in substance and effect. Had the plaintiff proved that any such deed ever existed— a deed lawfully executed by the party of the former name, who once owned the land, conveying it to the Samuel Moore under whom he claimed—that such deed had been lost and could not be produced, after diligent search for it wherever it might have reasonably been supposed to be, and if produced, that it would cover the place in regard to which the controversy existed ? On that subject the jury would recur to the testimony of the several witnesses as to the deed, and to the declarations of parties, interested in that question, and whose declarations, if made at a time when such interest existed in them and before they conveyed away the land, would bind the parties claiming under them.

Rodney, for plaintiff.

T. F. and J. A. Bayard, for defendant.

The plaintiff had a verdict; and at the same term the defendant obtained a rule to set it aside, on the ground of misdirection in the charge of the Court to the jury, which was afterwards heard’, and a new trial granted. Vide post.  