
    Samuel H. Moulton versus Charles Lawrence & al.
    
    The possession of a chattel continued for ten years under claim of ownership, will not, of itself, vest title therein; it would be evidence tending to show title, but liable to be controlled by other proof.
    As against one having such possession, a delivery by the true owner will not be necessary to vest title in the vendee.
    Exceptions from the ruling of Rice, J.
    This was an action of trespass, for an injury to the plaintiff’s booms in the Kennebec river at Pittston,' by -taking therefrom certain logs or sticks of timber which were a part of the structure of said booms. There was evidence tending to show that the plaintiff and others built the booms as early as 1850, and that the sticks taken by the defendants were used at that time in the making of said booms by plaintiff, who succeeded to the rights of the others to the boom. There was evidence tending to show title to the sticks in the defendants. There was also evidence tending to show that the plaintiff had from the time of using said sticks in 1850, claimed to own them. The defendants, if they purchased, bought them as late as 1857 or 1858. The sticks were taken from the boom in August or September, 1861.
    1. The Court instructed the jury that possession, though continued for eight or ten years under claim of ownership, would not of itself vest the title in the plaintiff. That such possession would be evidence tending to show title, but liable to be controlled by other proof.
    2. That if Moulton, the plaintiff, had no title to the logs in dispute, a delivery from the vendor to the defendants would not be necessary to vest the title in Lawrence as against Moulton, although at such time the logs were in the possession of Moulton, he claiming to own them.
    The plaintiff excepted.
    
      Olay, for plaintiff.
    
      Danforth, for defendants.
   The opinion of the Court was drawn up by

Barrows, J.

The plaintiff seems to rely entirely upon a title by occupancy. Chancellor Kent says, — " The means of acquiring personal property, by occupancy, are very limited. Though priority of occupancy was the foundation of the right of property in the primitive ages, and though some of the ancient institutions contemplated the right of occupancy as standing on broad ground, yet, in the progress of society, this original right was made to yield to the stronger claims of order and tranquillity. Title by occupancy is become almost extinct under civilized governments.”

The plaintiff’s claim here does not come within any of the exceptions to this doctrine. He showed only a naked possession, which, though prima fade evidence of title, was liable to be controlled by other proof. The defendants’ title to the logs accrued in 1857 or 1858, and there is nothing in the case to indicate that, if they had seen fit, or found it necessary to resort to legal process to recover their property at the time they took possession of it, they could not have maintained replevin for it against the plaintiff, if he had refused to surrender it.

The first instruction complained of was correct. 2 Kent’s Com., 355. So was the second. Case of the Sarah Ann, 2 Sumner, 211. Exceptions overruled.

Appleton, C. J., Cutting, Davis and Walton, JJ., concurred.  