
    Evans against Bidwell.
    Hartford,
    August, 1850.
    Where the plaintiff, in an action of trespass qu. cl.fr., claimed title to the locus im quo, by adverse possession, and in support of his claim, introduced dence of his acts of dominion over the locus in quo, whirl, was port of a way, and especially of his cutting wood thereon for his fires ; and the ant, for the purpose of showing the character of the possession claimed by the plaintiff, and that the acts done by him did not constitute an adverse posses- sion, offered a witness to prove, that at the times when the plaintiff so cut wood on the locus in quo, it was, and long had been, customary for any person who chose, although not owning the fee of the highway or of the adjacent land, to cut wood for his fires from said highway : but no evidence was of- fared or claim made, that any such acts were clone on the locus in quo; it was held, that such evidence offered by the defendant, was not relevant to the issue, and was therefore inadmissible. Tins was an
    action of trespass quare clausuin fregit, the locus in quo being part of a highway in Manchester; tried, on the general issue, at Hartford, January term 1850. The plaintiff claimed
    to have proved, that the premises described in the declaration, were part of an old original highway, thirty rods wide, running North and South; the travelled road being on the Eastern side of such highway, of the width of one rod, and the remainder of such highway, upon the West of the travelled road, being impassable. The plaintiff claimed
    title thereto, by adverse possession, under an ancient distribution; in support of which, however, there was no written evidence. In support of his claim of adverse possession, the plaintiff offered evidence of his acts of dominion over and use of the property, and especially of his cutting wood thereon for his fires, as owner, from time to time, for more than fifteen years previous to the trespasses complained of. The premises were never enclosed, except by the front fences. The defendant claimed
    The to have proved, that the legal title to the prerniseswas in himself, by virtue of a regular succes- sion of deeds, conveying the premises, and coming down from the plaintiff's grand-father in 1788, who then, it was claimed, owned the premises; and that he, the defendant, and those under whom he claimed, had always held the peaceable and uninterrupted possession of the premises under their respec- tive deeds. For the purpose of showing the character of the adverse possession claimed by the plaintiff, and that the acts that the acts claimed to have been done by him upon the premises, did not constitute an adverse possession thereof, the defendant offered Samuel T. Talcott, as a witness, to prove, that at the various times when the plaintiff so cut the wood on the premises it was, and long had been, customary in the town of Manchester, and that there was, and long had been, there, a usage for any person who chose, although not owning the fee of the highway, or of the adjacent land, to cut and take wood for their fires from said highway. But no evidence was offered to prove, or claim made, that any such acts were done upon the premises.
    The plaintiff objected to such evidence as irrelevant, and mere proof of trespasses upon other proprietors. The court thereupon rejected such evidence.
    The defendant moved for a new trial, claiming that the court, in thus ruling, mistook the law.
    
      T. C. Perkins and R. D. Hubbard, in support of the motion,
    contended, That the evidence in question was legally admissible. First, to denote the quo animo, with which the acts were done. Commonwealth v. Doane, 1 Cush. 10. Secondly, to show, that the acts were not done under an adverse claim, but by permission. O’Linda v. Lalhrop, 21 Pick. 292. 297. Willoughby v. Middlesex Co., 8 Metc. 290. Read v. Leeds, 19 Conn. R. 182. 189.
    
      Toucey and Chapman, contra,
    insisted, That the evidence offered by the defendant, was properly rejected. They cited and commented on Read v. Leeds, 19 Conn. R. 182. Waters v. Lilley, 4 Pick. 145. Lufkin v. Haskell, 3 Pick. 355. 358. 7 N. Hump. R. 233.
   By the Court.

The evidence excluded by the Judge was not relevant to the issue; and was therefore properly rejected.

New trial not to be granted.  