line of division, if known and claimed by both. Brown v. Edson, 23 Vt. 435. ises, according to the terms of the license, and a court of equity will, in proper case, decree an assurance of the title stipulated; as, where the 89. The recognition by the proprietors of contract has been performed on one part, by adjoining lots of a particular line as their making permanent erections of value. Ib. division line, and their acquiescence in this for 83. Possession as evidence of boundary. 15 years, with possession accordingly, either While evidence of use and occupation alone has actual or constructive, of both or either of the no legal tendency to show where a disputed lots, establishes this as the true division line. line was, yet if the occupancy was in accord- Clark v. Tabor, 28 Vt. 222. Childs v. Kingsance with the line in dispute, it tends to show bury, 46 Vt. 47. Davis v. Judge, 46 Vt. 655. where the line was. Beach v. Fay, 46 Vt. 337. White v. Everest, 1 Vt. 188. Beech v. Par84. Sometimes, the condition of lands and melee, 9 Vt. 352. Burton v. Lazell, 16 Vt. the circumstances accompanying the occupancy 158. Ackley v. Buck, 18 Vt. 395. of them will rebut the presumption that such 90. A line thus established was held conoccupancy was adverse, or under a claim of clusive, although in fact the original and true right. Thus, where the true line between two line was in a different place, and neither party adjoining proprietors was a straight line of 130 had actually occupied the strip between the two rods, having well-established permanent bound-lines, and no fence had been built on either aries, and corners, and for half that distance line. Burton v. Lazell. there was a straight fence upon the line, and 91. Where the plaintiff took a deed of land for the rest of the distance there was a slash described as bounded on the pitch of another, fence running zig-zag in the general course of made a survey conformable to his deed, as he the true line, but irregular and varying from supposed, went into possession, and occupied the true line, apparently as convenience for about thirty years according to the survey; required in the building over broken and ledgy-Held, in an action of trespass against ground;-Held, in the absence of affirmative a stranger in which the declaration described evidence to the contrary, that such facts were the premises as in the deed, that it was no sufficient to rebut the presumption that the defense to show that the description given did occupation on either side of the zig-zag fence not cover the land trespassed upon, where the beyond the true line, was adverse. Morse v. Churchill, 41 Vt. 649. 85. -with acquiescence of adjoining proprietor. Possession between adjoining proprietors according to a line which is mutually understood to be an uncertain, or not the true line, under an arrangement that the correct line shall be afterwards ascertained and run, is not an adverse possession, but leaves each in posses sion according to the deeds, claiming to the true line; and such possession does not establish the incorrect line by acquiescence. Burnell v. Maloney, 39 Vt. 579. plaintiff's survey and possession extended beyond the line of the pitch upon which the deed was bounded, and in fact covered the place of the trespass. Meacham v. Fay, 6 Vt. 208; and see Burton v. Lazell, 16 Vt. 158. easements 92. Where A purchased land of B and went into possession and occupied as owner, but without deed, and afterwards sold the land to C, to whom B afterwards conveyed directly ;Held, that the acquiescence of A in a boundary line, during the time of his occupation, was as binding as if the legal title had been in him. Sheldon v. Perkins, 37 Vt. 550. 86. As a general rule, an admission by a 93. Easements. Rights to party of a mistaken line for the true one has no acquired by long possession ought to stand on legal effect upon his title; and a mutual recog- the same ground as rights by possession in nition of a wrong line by adjoining proprietors, lands, and the doctrine of the law in the two and their acquiescence in such line, unless cases should harmonize-and so held. Tracy v. accompanied by possession of one, or both, Atherton, 36 Vt. 503. according to it, and that continued for fifteen years, are not conclusive as to their respective rights. Crowell v. Bebee, 10 Vt. 33. 94. The statute of limitations does not extend to incorporeal rights, but, in analogy to it, the uninterrupted use of an easement, under 87. But such mutual recognition and a claim of right, for the period fixed by the acquiescence in a given line, accompanied by statute as a bar to the recovery of lands held actual possession of one, or both, for the period adversely [15 years], gives the person so using of fifteen years, will be conclusive as to their the easement a full and absolute right to it, as respective rights. Spaulding v. Warren, 25 much as if granted to him. The presumption Vt. 316. arising from such long-continued possession, 88. A mere acquiescence, for fifteen years, unrebutted, is a presumption of law, and is conin a line as the dividing line between adjoin- clusive. Ib. Townsend v. Downer, 32 Vt. 204. ing proprietors, although but one of the owners, Victory v. Wells, 39 Vt. 494. and perhaps neither, is in actual possession, is, we think, sufficient to establish that as the true 95. It is the general rule, that the enjoyment of an easement is presumed to be adverse unless something appears to rebut that pre- Douglass, 2 Aik. 364. University v. Joslyn, 21 sumption. This is the general rule, where Vt. 52. White v. Fuller, 38 Vt. 203. there is no express evidence that the use was 102. It does not apply where the conveyaccompanied by a claim of right, and no ance is by operation of law; as, by levy of express evidence of a disclaimer of the right. execution. Farnsworth v. Converse, 1 D. Chip. Perrin v. Garfield, 37 Vt. 304. 139. 96. In order to the acquiring of an ease- 103. Or by an officer of the State or of the ment in lands by use, whether notice of such United States. Aldis v. Burdick, 8 Vt. 21. use to the owner of the lands is necessaryquære. Ib. 104. Nor does this Statute apply where a trust estate is conveyed to the uses for which 97. Where one enjoys the use of an ease-it was originally created. Mitchell v. Stevens, ment in a manner otherwise sufficient to gain 1 Aik. 16. Vt. 239. a right by adverse use, he will not be pre- 105. Nor, where a trustee conveys to his vented from acquiring the right, by the owner cestui que trust-as, an administrator to the of the estate in which the right is claimed heirs of the estate; nor, where chancery would occasionally objecting or denying the right, compel a conveyance. Appleton v. Edson, 8 but not interfering with or interrupting the enjoyment of it, having the power to do so, where the enjoyment is had in spite of the objection;-the easement being of such a character that the claimant has only to enjoy the use, without other adversary acts on his part. 107. When a trust relation exists between Such permissive use amounts to an acquies- the parties, a conveyance by either, that merges cence, which is the same as saying that the the legal and equitable estates, is not within possession is uninterrupted. Kimball v. Ladd, this statute. Stacy v. Bostwick, 48 Vt. 192. 42 Vt. 747. Tracy v. Atherton, 36 Vt. 503. 108. The defendant's possession under a 106. Nor, where a conveyance is made by the agents of a municipal or public corporation, acting in the line of official duty. White v. Fuller, 38 Vt. 193. 98. Where one claims a prescriptive right levy of execution against the plaintiff is not in the lands of another, he must show affirma- adverse to the plaintiff's title, so as to avoid a tively an adverse continuous use for fifteen deed to the plaintiff from a third person. Hall years, under a claim of ownership, or as of v. Hall, 5 Vt. 304. right. In absence of any proof or circum- 109. As between mortgagor and mortgagee, stances indicating the contrary, it may do to the possession of either does not prevent the assume that the use is adverse and under a other from conveying his title to a third person. claim of right. But where the nature of the Converse v. Searls, 10 Vt. 578. use is doubtful, the question of adverse use under a claim of right is for the jury, not the court. Plimpton v. Converse, 42 Vt. 712. 110. To avoid a deed for adverse possession, the possession must be wholly adverse to the grantor, and the claim of the possessor be to an 99. On the other hand, the prima facie estate entirely to the exclusion of any right or presumption is, that the enjoyment of one's title existing in the grantor, and under a title own land is an exercise of his right to so enjoy adverse to him. Thus, where the possessor it; and where another claims a right against claims a life estate under the grantor, though the owner by an adverse use which has occasion-against the will of the grantor, such possession ally been interrupted by the owner, the burden does not avoid the grantor's deed, and such deed is upon the other to show that such interrup- conveys whatever title the grantor had. Selleck tions were consistent with his claim, and v. Starr, 6 Vt. 194. not upon the owner to show that they were inconsistent with it. Ib. 111. P claimed a life estate in land, and S claimed the fee adversely, both claiming under 100. Non-user. A right arising from a the same devise. P by deed leased the land to grant, and not from prescription-as, a right the defendant, while S was in adverse possesof flowage is not lost by non-user where it sion. Afterwards S deeded the land to W cannot be used without encroaching upon the subject to P's life estate, and W conveyed to the rights of others created by deed; but the use plaintiff. Held, that the plaintiff could not may be resumed whenever such adverse right avoid the lease from P by reason of the then is extinguished. Mower v. Hutchinson, 9 Vt. adverse possession of S. Hibbard v. Hurlburt, 242. 101. Adverse possession as avoiding a conveyance. The statute "to prevent fraudulent speculations, &c.," first passed in 1807, avoiding a conveyance when a third person is in adverse posssesion (G. S. c. 65, s. 27), was merely a legislative declaration of an established principle of the common law. Robinson v. 10 Vt. 173. 112. Where the grantor of land remains in possession of the land conveyed, claiming it as his own, to the knowledge of his grantee, this is such an adverse possession and disseisin of the grantee as avoids his deed to a stranger. Stevens v. Whitcomb, 16 Vt. 121. Robinson v. Douglass, 2 Aik. 364. 113. Where one entered into possession of who are not his appointed and sworn deputies, land under a parol contract of purchase, and whereby a letter is lost. Christy v. Smith, 23 had performed on his part so as to entitle him Vt. 663; and see Danforth v. Grant, 14 Vt. to a deed, which was refused, and he so contin- 283. ued in possession, claiming adversely ;-Held, 2. In an action against a postmaster for that that this was such an adverse possession and he "carelessly and negligently" lost a letter, claim as avoided a deed of his vendor to a third alleging his negligence in such general terms;party. Ripley v. Yale, 19 Vt. 156. Held, that the defendant was not entitled to a 114. Contract and deed good between charge that the plaintiff must, in order to the parties. A contract for the sale of lands recover, "show some particular act of negliof which a third person is in adverse posses-gence in relation to the letter, and that the loss sion, is not corrupt, nor against the policy was the direct consequence of that particular of the law, nor prohibited by the statute. negligence ; "—that general proof tending to The only effect of the statute is to render the show that the loss was occasioned by neglideed void for the purpose of transferring the gence, and which satisfied the jury that the legal title; but the equitable title does pass by loss was so occasioned, was sufficient to sussuch deed, and will be protected, in a court of tain the declaration and the action. Christy law, against any interference of the grantor. v. Smith. Edwards v. Parkhurst, 21 Vt. 472. 26 Vt. 609. 28 Vt. 364. See OFFICER, 7-8. POUNDS AND IMPOUNDING. 115. A conveyance executed when a third person is in adverse possession is void only as to the person in adverse possession, and his privies. It is good between the parties to it, and is a license to the grantee to do any act upon the land which the grantor might do, and 1. Inclosure. Under the statute of 1797 enables him to do any such acts, in the name of (Slade's Stat. c. 55, s. 3), authorizing the the grantor, as may be necessary to establish impounding of cattle found damage feasant in the grantor's title, which title, when established, the owner's "inclosure";-Held, that the right will enure to the benefit of the grantee. to impound did not exist unless the locus in quo Edwards v. Roys, 18 Vt. 473. University v. was inclosed by a legal fence, except such Joslyn, 21 Vt. 52. White v. Fuller, 38 Vt. 204. fences as the owner or keeper of the cattle, or the 116. Possession a question of fact. adjoining proprietor, was bound to keep in Whether there was a possession adverse to the repair. Mooney v. Maynard, 1 Vt. 470. Porter grantor, so as to avoid his deed, is a question v. Aldrich, 39 Vt. 326. for the jury, and is not to be determined by the 2. The word inclosure, as used in the imcourt upon the question of admitting the deed pounding acts, (Slade's Stat. c. 55, s. 3. R. in evidence. Stevens v. Dewing, 2 Aik. 112. S. c. 88, s. 4. G. S. c. 100, s. 4), imports 117. Where the question was whether the land inclosed by some visible or tangible defendant's cutting of a tree inside of a fence obstruction, such as a fence, hedge, ditch, or which the plaintiff claimed as the true division something equivalent, for the protection of the line between him and the defendant, but which premises against encroachment by cattle; and was in dispute, interrupted the continuity of differs from the word close, which embraces the plaintiff's adverse possession for fifteen land owned by a party, or of which he is in the years up to the fence, the court refused so to rightful possession, although inclosed only by rule as matter of law, but left the question to the imaginary boundary line which defines its the jury. Held correct. Hale v. Rich, 48 Vt. 217. territorial limits. Porter v. Aldrich. 118. Chancery. Under the circumstances 3. Under G. S. c. 100 s. 4, enacting that of the case, an orator obtained a decree who " any person may impound any beast found in stated his title under a deed from one out of his inclosure doing damage,"-Held, that where possession, and where the defendant was in ad- the law, under the special facts of the case, has verse possession. Smith v. Blaisdell, 17 Vt. 199. cast upon the owner of the beast the duty of keeping it off the land of another, such land is As to change of possession as affecting sales, the inclosure of the owner, whether fenced or see SALES, III.; MORTGAGE, 209, et seq. POSTMASTER. not, within the meaning of this statute. Keith v. Bradford, 39 Vt. 34. 4. Fences. The remedy by impounding does not extend to beasts found damage feasant upon wild, uncultivated, unimproved and unoccupied lands lying open and common; nor, 1. A postmaster is answerable for the negli- as between the owner of occupied lands and the gence of his clerks and servants in the office adjoining proprietor, where the beasts enter upon such owner's land through his neglect in Holden v. Torrey. Porter v. Aldrich, 39 Vt. regard to his portion of the division fence. It 326. is otherwise, as between such owner and persons other than the adjoining proprietor. Porter v. Aldrich, 39 Vt. 326. 12. Notice of impounding. A party acting in his own behalf, who impounds another's beasts, becomes a trespasser ab initio 5. Under R. S. c. 88, s. 16, neither of two by neglecting to give the statutory notice of the adjoining proprietors, whose lands were under impounding; and this is part of the impounder's cultivation and without division fence between justification, to be by him alleged and proved. them, could impound the cattle of the other, Porter v. Aldrich. damage feasant. Hooper v. Kittredge, 16 Vt. 677. 6. Pound. Where a town is destitute of a pound, one may impound in his own inclosure, or in that of another person. (G. S. c. 100, s. 3.) Riker v. Hooper, 35 Vt. 457. 13. A mere servant of the impounder of cattle, acting by the immediate request of his employer in the transaction of impounding, does not become a trespasser ab initio by the subsequent neglect of his employer to give the statutory notice of the impounding; otherwise, 7. Where a town was destitute of a pound, as to a general agent acting in the absence of but the pound-keeper received the beast as his principal. Ib. pound-keeper and confined it in his private 14. Limitation. The limit of forty-eight inclosure ;-Held, that an action to recover the hours, given in G. S. c. 100, s. 10, for the penalty for not replevying or redeeming the owner of cattle impounded to replevy or redeem beast, and for the legal charges, must be in the the same, must be understood with this qualiname of the pound-keeper, and not of the fication,-if the damages can be so soon ascerimpounder. Ib. (G. S. c. 100, s. 10.) tained, and, if not, as soon as they can be 8. A "pound" is some place where beasts ascertained. Mellen v. Moody, 23 Vt. 674. 31 are to be confined, kept and fed. Where a Vt. 692. party, after lawfully impounding cattle in his 15. Replevin does not lie against a poundown barn-yard, turned them out to graze in his keeper for detaining impounded cattle beyond inclosed fields near his barn-yard, during the the forty-eight hours, although no certificate of days, but put them in his barn-yard, nights, he was held to have lost thereby his legal control of them. Harriman v. Fifield, 36 Vt. 341. the appraisal has been received by him, where the damages cannot be ascertained within that time; and before such action will lie against 9. Charges-Appraisal. The impounder the pound keeper, the owner must first pay the of cattle taken damage feasant and regularly appraised damages, and all just costs. Ib. impounded, may lawfully detain the same until the payment or tender of the legal charges and expenses of impounding and keeping the cattle, although there has been an irregular appraisal of damages, or no appraisal. Harriman v. Fifield. Keith v. Bradford, 39 Vt. 34. Porter v. Aldrich, Ib. 333. 16. Certificate of appraisal. An appraisal of the damages made according to the provisions of the statute, and without fraud, is in the nature of a judgment; and the certificate of the appraisers would be conclusive. Harriman v. Fifield, 36 Vt. 348. Holden v. Torrey, 31 Vt. 694. 10. One having a right to take up and 17. Impounder may defend possession. impound cattle damage feasant, took them to A person engaged in the lawful attempt to his own premises and claimed to keep them impound cattle has the right to defend, by until the damages done on that and previous reasonable force, his possession of them for the occasions should be paid. Held, that the taking purpose for which he has taken them in charge, and detention were unlawful, and that replevin and to the same extent that a sheriff has, to lay therefor. Ladue v. Branch, 42 Vt. 574; protect his possession of property taken by him and see Holden v. Torrey, 31 Vt. 690. on legal process. Barrows v. Fassett, 36 Vt. 625. 11. The impounder of cattle taken damage 18. Time for notice. The twenty-four feasant does not become a trespasser ab initio, hours prescribed by the statute for the giving nor is he prevented from justifying the im- of notice to the owner that his beasts have been pounding, in replevin, by a neglect to give impounded, are to be reckoned from the time notice under the statute for the appointment of they are delivered to the pound-keeper. (G. S. appraisers to appraise the damage, nor of the c. 100, s. 5.) Moore v. Robbins, 7 Vt. 363. time of the appraisal, nor by an appraisal 19. Remedy of pound-keeper. A poundfraudulently procured. Such an appraisal keeper cannot recover of the impounder, in an would be void; and as the appointing of action of book account or on an implied conappraisers is only to ascertain the damages, tract, for the keeping of the cattle impounded, no appointment of appraisers is necessary whether the impounding be lawful, or unlawful. where the claim for damages is waived. Keith Williams v. Willard, 23 Vt. 369. v. Bradford, 39 Vt. 34. Moore v. Robbins, 7 20. Penalty. The forfeiture of 17 cents a Vt. 363. Harriman v. Fifield, 36 Vt. 341. day to a pound-keeper, where the owner of the cattle impounded does not, after 48 hours' notice, | Held, that the county court had the legal power redeem or replevy them (G. S. c. 100, s. 10), so to do. Franks v. Lockey, 45 Vt. 395. is wholly a penalty, and extra the compensation 4. After an appearance and imparlance, all for support of the cattle. Edwards v. Osgood, defects in personal service are waived. Coit v. 33 Vt. 224. Sheldon, 1 Tyl. 300. 21. The penalty for not replevying or 5. Where a party comes in and challenges a redeeming a beast impounded, and the legal process on account of its defects, an appearcharges for the keeping, are separate claims, ance for that purpose concludes the party only but both may be joined in the same suit. Riker to that extent. Propagation Society, &c., V. v. Hooper, 35 Vt. 457. Ballard, 4 Vt. 119. 22. Evidence. The plaintiff's cow was 6. Before the statute of 1807, relating to found damage feasant on land of the defendant files lost, &c.,--Held, that the county court had and his partner, and was by such partner taken no authority to make a general or special rule, up and detained as a mode of recovering the so as to compel the defendant to appear and damage done but unlawfully. Held, that the answer to a new declaration, when the original defendant's acquiescence and consent to the files were lost. Kinne v. Plumb, 1 Tyl. 20. taking and detention of the cow, after this came 7. Death of party. Where a sole defendto his knowledge, was sufficient to charge him ant died after service of the writ, but before the in replevin; and that the fact of such partner- return day ;-Held, not a case for entry, and ship relation was entitled to some consideration, citing in his administrator to defend, under as evidence against him, in connection with the then statute as to suits pending. Hyde v. evidence tending to show such acquiescence Leavitt, 2 Tyl. 170. and consent. Riley v. Noyes, 44 Vt. 455. See REPLEVIN. I. II. PRACTICE. GENERALLY; AND IN COUNTY COURT I. GENERALLY; AND IN COUNTY COURT. 8. Under the probate act of 1821 (Slade's Stat. 345), the administrator of a party who died during the pendency of a suit, where the cause of action survived, could not enter, nor be cited in, to prosecute or defend after the next term of court following the granting of administration. Tyler v. Whitney, 8 Vt. 26. Wentworth v. Wentworth, 12 Vt. 244. (Changed by R. S. of 1839. G. S. c. 52, ss. 21, 22.) 9. Where one party to a suit dies, it is in the discretion of the court, under G. S. c. 52, s. 24, to say how long the suit shall be continued to await the appointment of an administrator; and where the court dismissed such a suit, because of an unwarrantable delay in the appointment 1. Appearance. One defendant in an of an administrator, the supreme court refused action ex contractu may, in the absence of to examine the question. State Treasurer v. instructions to the contrary, employ counsel, Raymond, 16 Vt. 364. 24 Vt. 302. enter appearance, plead, and defend fully for all. Scott v. Larkin, 13 Vt. 112. 44 Vt. 551. 2. This is limited to the case where the other defendants have had personal notice of the suit. Whitney v. Silver, 22 Vt. 634. 10. It is not necessary, in the entry of a second administrator to prosecute a pending suit, that it should appear to be by special leave of the court. This is a matter of course which the court could not legally refuse. Steen v. Bennett, 24 Vt. 303. 3. The defendants were partners and, as 11. Precedents. Precedents-" as having such, were sued. There was no personal ser- become incorporated into the common law of vice on the defendant L, who resided out of the procedure in this State." See Burnell v. Dodge, State and had no knowledge of the suit until 33 Vt. 465. Eastman v. Curtis, 4 Vt. 620. after judgment therein; but the defendant T, 12. "Not for jury." Where a party sets who resided in the State and had the manage- down a case "not for the jury," this means, by ment of the partnership business there, was per- long-settled practice, that he shall show good sonally served, and employed an attorney for cause for a continuance, or submit to a judgboth defendants, and they, by such attorney, ment against him. Briggs v. Gleason, 32 Vt. appeared and consented to judgment against 472. Bradley v. Chamberlain, 31 Vt. 468. both, which was rendered, and execution issued. Chamberlin v. Murphy, 41 Vt. 110. At the next term suit was brought on the judg- 13. In such case, he is not entitled to have ment, and at a subsequent term the court, on the damages assessed by a jury. He has motion of L for that purpose, vacated said judg- declared of record, that there is nothing in his ment as to him, and ordered the cause brought case which he claims to have tried by jury. forward upon the docket for trial as to him. Briggs v. Gleason, |