Keener v. Kauffman

Tuck, J., delivered the opinion of this court: This is an action of trespass, quare clausum fregit, by the appellant against the appellee, which was tried on issues framed upon the pleas of non cul, and liberum tenementum. The defendant below has the paper title, the plaintiff claim ³⁰⁶ ing by possession in himself, and those under whom he claims, for more than twenty years. After the parties had offered much parol and documentary evidence, the plaintiff submitted three prayers, all of which Were refused by the judge below, who gave a verbal instruc'f.ioit.' The plaintiff excepted to the refusal of his prayers, but not to the direction as given by the court. He also excepted to the admissibility of a portion of the evidence of G. orge Myers, offered by the defendant.

As the first prayer is based on the principle that possession is sufficient to maintain an action of trespass q. c.f., against all persons except the legal owner, it is necessary to determine how far that doctrine applies to the present case, in ■view of the issues made by the pleadings. The plea of liberum tenemeutwm admits possession by the plaintiff, but does it admit such a possession as entitles him to sue in the particular case? The nature of the plea — what it admits, and what, it denies — was discussed in Hunter vs. Hatton, 4 Gill, 125 , where we are told that “it must admit such a possession as would suffice to maintain the action, if unanswered, or as against a wrong-doer. On the other hand it must deny a rightful possession, or it would fail asa defence to the action.

It gives implied color to the plaintiff, but asserts a freehold in the defendant, with a right to immediate possession.” Where, in answer to such a plea, the plaintiff replies a term created by the defendant, the freehold of the latter is admitted, with the assertion of a right of possession in the plaintiff, under the terms. Under that issue the plaintiff’s right of possession would be the question to be decided. But Where, as here, a special replication is not filed, and the issue is joined on the plea of liberum tenementum, the matter in issue is the freehold of the defendant, and if the jury find tl t fact they have nothing to do with the right of possession. ' be plaintiff’s traverse of the plea admits the defendant’s right to the possession, should the jury find him entitled to • the freehold. This prayer is, therefore, clearly defective in leaving but of view all notice of the freehold title, and placing the plaintiff’s right to recover on mere proof of possession, ³⁰⁷ without reference to its character as an adversary holding against the legal owner.

The second prayer asserts the plaintiff’s right, to recover on proof of possession in the plaintiff, and those under whom he claims, from 1817 to 1845, “by enclosure, and by the use and cultivation of the property so enclosed,” on the ground that such possession barred the defendant’s entry. Without passing upon all the objections urged against this prayer, we think it was properly refused. Conceding, which we do not decide, that where there is no evidence to explain the character of the entry and possession, the court may instruct the jury — -as a conclusion of law — that possession by enclosure for twenty years is