The case of Ackerman v. Shelp, 3 Halst. 125, has been cited, to show that the doctrine of prescription has not been adopted in New Jersey; but this is no reason why it should be rejected in Massachusetts, where it has long since been adopted, and is now familiar in practice; adopted, too, not only by the authority of our courts, but with the implied sanction of the Legislature. As early as the year 1641, it was ordered and decreed by the Colonial Legislature, that no custom or prescription should prevail in any moral case, that is, as it was declared, "to maintain anything that could be proved to be morally sinful by the word of God." Ancient Charters, etc., 177. This provision, it is true, manifests great ignorance of the principles of the common law, and for the purpose for which it was framed was useless and inoperative. It serves, nevertheless, to show that when afterwards the doctrine of prescription was introduced into practice, it was not done without the countenance of the Legislature; although certainly no legislative authority was necessary to give it validity.
But it has been argued, that the right set up by the defendant cannot be maintained, by the principles of the common law, as a right by prescription, or as a custom. The cases, however, cited in support of this argument, refer either to private rights or local customs. The right in question is a public prescriptive right, and as such it is well pleaded. It is similar to the easement which the public has in highways, and may well be prescribed for. In pleading such a public right to an easement, it is sufficient to aver that the locus in quo is a public highway or public landing-place, etc., without showing how it became so; for it cannot be presumed that every party has knowledge of the origin of a public right. Aspindall v. Brown, 3 T. R. 265; 3 Chit. Crim. Law, 570; 3 Dane, 248; Commonwealth v. Manning, S. J. Court, Essex County, 1795, in 3 Dane, 19, c. 71, art. 5, §§ 8, 9, 10; Gateward's Case, 6 Co. 60, 61.
33 Vermont, 295. - 1860. [Reported herein at p. 840. ]
1 See also Robeson v. Pittenger, supra, p. 837. - Ed.
V. Title by the statute of limitations.
1. Essentials for Such Title.
a. A disseisin and an adverse possession.1
b. The adverse possession must be continuous for the term fixed by the statute.'2 Tacking.
14 Pennsylvania State, 297 - 1890.
Ejectment. - Judgment for plaintiff. Defendant brings error.
Rogers, J. - The plaintiff exhibits in evidence a perfect legal title to the premises in controversy. This is admitted, but the defendant relies on the act of limitations. The suit was instituted the 19th March, 1847; the title under which the defendant claims commenced in May, 1825, so that more than twenty-one years elapsed from the commencement of the title until the institution of the suit.
To acquire a right by the act of limitations requires a possession of twenty-one years, actual, visible, continued, notorious, distinct, and hostile. The plaintiff contends he is not barred because the possession was not a continued possession; but that the possession was interrupted in its transmission from Mason, the first intruder, to Hughs, the defendant. On this point the cause mainly turns. Mason proves that he made the first improvement in May, 1825; that he deadened trees in May, grubbed six acres in June, chopped logs and saplings on four acres, burnt brush, chopped logs in July, and that he had a shanty on the place, about ten by twelve feet square. That, being about to leave the property, he told his sister, the widow of Israel Bartlett, that she might take his right and sell it, and if she could get anything for it, well and good. Whether we consider this transaction as a parol sale, or gift, or an authority to sell, is, perhaps, of but little consequence. But that it was the latter, in the estimation of the parties, at least, would appear from their subsequent conduct; for, after selling to Hughs, who took possession in pursuance of the contract, she paid over to her brother one-half of the purchase money. Coupling this with the words used, it indicates rather a power of sale than a gift or sale to her. But be that as it may, is the agreement between Mrs. Bartlett and Hughs, subsequently ratified by Mason receiving half the purchase money, possession taken in pursuance of it, to be viewed as a separate, distinct trespass, or is it a continuation of the original trespass? In other words, has Hughs the right to tack Mason's possession, for which he paid value, to his own, so as to bar plaintiff's right? Had Mason abandoned the property absolutely, or had Hughs taken possession without authority, these would present such a want of continuity as would be fatal to the defense. But does this appear? These are points which the jury must decide. 4 Watts, 409; Simp-sou v. McBeth, 5 Watts, 441; Fish v. Brown. In Cunningham v. Patton, 6 Barr. 355, it is ruled that when adverse possession is proved by parol testimony only, it is a question for the jury whether it is continuous. Indeed, when there is a spark of evidence, a question of fact must be submitted to the jury as the legitimate triers of it. Bank of Pittsburgh v. Whitehead, et a/., 10 Watts, 397. The facts which particularly bear on this point are these: Under authority derived from Mason, Mrs. Bartlett sells to Hughs; Mason receives one-half of the purchase money, and, under this contract, Hughs enters, and ever since has been in the actual possession of the land. That Hughs was a trespasser as to the plaintiff, may be admitted; but was he a trespasser as to either Mason or Mrs. Bartlett, who sold their right in the property, whatever it was, and received the purchase money? Under such a state of facts, it is clear that no action of trespass could be sustained by either of them. The court would seem to be under the impression that unless Mason was in the actual possession at the time of the contract, the law would not unite the possession to the title; that the continuity of possession which the law requires cannot be preserved, unless there is actual, continued possession of the premises. So I understand the court, and, if so, the point is ruled in direct opposition to Sailor v. Hertsog, 4 Whar. 272. In that case it was insisted the continuity of possession was destroyed by the interruption of the actual possession; that the premises had been vacant about the year 1815, an important period in the title, bearing directly on the defense under the statute. But the judge who tried the cause at nisi prius, afterwards affirmed by the Supreme Court, says: "That in order to destroy the continuity of possession, the vacancy must not be merely occasional, such as occurs in every case where a party, for some cause, unable to obtain a tenant, shuts up his property for a short, or, indeed, for a long time. When the possession is abandoned for any time, or when a person takes possession of the property in dispute, or is totally unconnected with the previous holder, it prevents the operation of the act, because the continuity of possession, which is essential to a title under the act of limitation, is broken. It is a principle of law, it is true, that when the possession is vacant, the law casts the posses-[law of prop in land. - 66.]