« EelmineJätka »
constituted the commune. If M. Thiers recognized,
ACQUIESCENCE. as he unquestionably did, the right of these men to The earliest case in this state is Jackson v. Bowen, 1 overthrow a settled government of a fifth of a cen Cainęs, 363, A. D. 1803. It was decided that an tury, he certainly cannot claim that they are felons adverse possession of more than twenty years was a now for attempting to overthrow a government not a bar to a recovery in ejectment. The court remarked month old.
that if a man was mistaken in respect to his title, but, Rebellion being only a political offense, it follows under circumstances showing no suspicion of imposiprima facie that every insurgent engaged in rebellious tion or ignorance, acquiesced in a possession by warfare has committed no extradition crime, and another in hostility to it, for the length of time shown every act done in the bona fide prosecution of that in this case, he ought to be concluded. That length warfare, though shocking in itself, is but an offense of time in this case was thirty-six years. against the state. Were the burning of the Tuilleries, In Jackson v. Dysling, 2 Caines, 197, A. D. 1804, the slaughter of the archbishop of Paris and the other the plaintiff's lessor and the defendant's predecessor hostages, the destruction of the public buildings and had forty years before employed two surveyors to run the firing of the city, acts done in the bona fide prose a line between them, and the defendant's predecessor cution of this warfare? Horrible as these acts by parol agreed to remove his fence to the line which undoubtedly were, it is not impossible to suppose the surveyors found, but there was evidence of a that they may have been resorted to for the same subsequent parol agreement, between the plaintiff's reasons that kindred measures have been frequently lessor and the defendant, in effect rescinding that resorted to in international wars, viz. : for reprisal or agreement. This second agreement was, that if a suit for strategical purposes.
between Klock, defendant's predecessor, and Wills, Again, the commune was for nearly three months should be decided in favor of Klock, the defendant the de facto government of Paris, and exercised the was to give up possession without suit; but if Wills attributes of sovereignty. It waged war, levied prevailed, the plaintiff's lessor was to abandon his armies, held elections, made laws, collected taxes and claim. No evidence as to the event of that suit was contracted loans. Now, suppose that the murder of given. Judge Spencer thought the first parol agreethe hostages, or any or all of the many horrible acts ment binding, but held it rescinded by the second; done, were done in obedience to or furtherance of the that the plaintiff was bound to show the result of commands of this de facto government, would this that suit; but he held the acquiescence of forty years remove them from the category of ordinary crimes to be conclusive in favor of the defendant. Judge and give them the character of political offense? If Livingston held the first agreement invalid, because it yes, then the perpetrators of them are clearly not was not acted on, but agreed with Spencer as to the liable to extradition. That there was no sufficient acquiescence. Judge Thompson held the first agreepolitical motive for the acts does not affect the ques ment not affected by the statute; that the second tion. We have no right to investigate the motive, so agreement had nothing to do with the case as it soon as it is established that the commune was a de stood, or that the defendant should have chosen the facto government, and that these crimes were com result of the suit; and that the plaintiff was entitled mitted in obedience to the orders of that government. to recover. Judgment of nonsuit.
In Jackson v. Vedder, 3 Johns. 8, A. D. 1808, it was
held, that, where a partition had been made, with a PRACTICAL LOCATION OF DIVISION LINES.
survey and a map, and possession had been taken For many years there have been but two ways in accordingly and held for forty years, the parties were which the citizen could acquire title to lands; first, concluded from contesting the correctness of the by grant; second, by such long possession that a actual location. grant should be conclusively presumed, or as it is In Jackson v. Diefendorf, 3 Johns. 269, A. D. 1808, commonly called, adverse possession. In most, prob- it was held, that, where a location had been made ably all, communities, the length of time necessary to under a deed and survey, and undisturbed possession establish this presumption is fixed by statute. But held accordingly for thirty-eight years, it should prewithin a comparatively recent period, attempts have vail, although subsequently made to appear inacbeen made in the courts, based upon strong and ap curate. parent equities, to evade the statutes of limitation in In Jackson v. Ogden, 7 Johns. 238, A. D. 1810, the this respect, and give force to the agreements of grant was uncertain and ambiguous as to location, parties in regard to boundary lines, and to their long but there had been an acquiescence of seventeen or continued occupation of premises in a particular man eighteen years, during which the land had been culner, but for less than the statutory period. It may tivated and become valuable. The plaintiff also had be useful to examine these cases. We will examine purchased under defendant's title, taking a deed t'ie question of location, fixed, first, by mere acqui- recognizing the lines thus located. A majority of the escence; second, by specific agreement; and third, by court held this to be conclusive. But Judge Van equitable estoppel.
Ness dissented, holding that the grants conferred no
title on the defendant, and that such a length of nineteen years the line thus established was held possession was not sufficient to make title. He says, conclusive. But this was expressly placed on the at page 245: “The extent which we have hitherto ground of the agreement. gone is, that when two persons already having a In Jackson v. Freer, 17 Johns. 29, A. D. 1819, the title have settled the line of division between them, proprietors of the patent had partitioned the same by or when one having title has made an actual loca actual survey, and the lot in question had been imtion, according to what he supposed to be his true proved more than twenty years, and the defendant line, and his neighbors have acquiesced in such loca- had possessed it fourteen years. A verdict for detion for a considerable length of time, the boundary fendant was sustained. The decision was placed on thus established shall remain undisturbed. But in the ground of the original agreement. this case my brethren go greatly beyond the principle In Rockwell v. Adams, 7 Cowen, 761, A. D. 1827, of our former decisions."
action of replevin, tried in 1825, it does not appear In Jackson v. Douglass, 8 Johns. 367, A. D. 1811, how long the acquiescence had been. The lands where there was no uncertainty as to the true loca were wild, and no occupation was shown except cuttion of two adjoining lots of land, the single fact that ting of timber, and there had been no agreement as one of the plaintiff's lessors, eight years before, had to the line. But the court held that where the line pointed out a mistaken line, which was fenced ac has been acquiesced in for a great number of years, cordingly, was not sufficient to conclude the plaintiff. by all the parties interested, it is conclusive evidence
In Jackson v. Gardner, 8 Johns. 394, A. D. 1811, it of an agreement to that line; citing Jackson v. Bowen, was held, that, where A. voluntarily surrendered a Jackson v. Vedder and Jackson v. Diefendorf, and lease and took a new lease, and afterward claimed adding, “In each of these cases erroneous locations under the old lease, he could recover no more land had been made, and they had been acquiesced in (not than what he could prove with absolute certainty was with a full knowledge that they were erroneous, but covered by the old lease; especially after the prem under a belief that they were correct), for from thirty ises claimed had been in possession of another for to forty years.” The court also hold that an actual sixteen years, who had made valuable improvements. practical location will control, although the party
In Stuyvesant v. Dunham, 9 Johns. 61, A. D. 1812, does not know that its effect will be to give him less there was a crooked fence between the parties, which land than he would otherwise be entitled to, and that the plaintiff proposed to the defendant to straighten. there need be no express agreement to abide by the Accordingly, the plaintiff employed a surveyor, who, line. And the court then adopt and sanction Van to the knowledge of the defendant, and without Ness' dissenting opinion in Jackson v. Ogden as the objection on his part, ran a straight line. The plain- true rule. The verdict for defendant was set aside. tiff removed the fence to this line, and the defendant The action was tried again in 1828 (6 Wend. 467, A. pulled it down. The plaintiff brought trespass. The D. 1821), eleven years acquiescence was shown. The defendant showed that he and his ancestors had been plaintiff had a verdict. Chief Justice Savage said the possessed of the locus in quo for more than twenty- question was the same as in 7 Cowen, adopted the five years, and that during all that time the crooked law there laid down, and denied a new trial. From fence had been the boundary. Also, that before the this decision error was brought, and the case came plaintiff's removal of the fence he objected to it. The up again in 1836, before the court of errors (16 Wend. plaintiff was defeated.
285), and this is the starting point back to which all In Jackson v. Smith, 9 Johns. 100, A. D. 1812, it subsequent decisions go. Chancellor Walworth laid was held that where a survey was made by the direc down this rule: “Where there can be no real doubt tion and under the observation of the grantee, he as to how the premises should be located, accordcannot, after the lapse of twenty-six years, vary the ing to certain and known boundaries described location. The grant in question was
for the use of in the deed, to establish a practical location difthe gospel,” but the court do not seem to lay any ferent therefrom, which shall deprive the party stress on the peculiar sacredness of the purpose. claiming under the deed of his legal rights, there
In Jackson v. Msc Call, 10 Jolins. 377, A. D. 1813, it must be either a location which has been acquiesced was proved that the immediate predecessor of the les in for a susficient length of time to bar a right of sor of the plaintiff had repeatedly confessed that he entry under the statute of limitations in relation to was present when the line was run by the king's sur real estate; or the erroneous line must have been veyors, and that the line set up by the defendant was agreed upon between the parties claiming the land on the one he referred to. This line had been recog both sides thereof; or the party whose right is be nized on both sides for forty-one years. Held, con thus barred must have silently looked on and seen clusive against the plaintiff.
the other party doing acts, or subjecting himself to In Jackson v. Van Corlear, 11 Johns. 127, A. D. expenses, in relation to the land on the opposite side 1814, the parties had made a new survey, and agreed of the line, which would be an injury to him, and on the line run thereon as the true boundary. Posi which he would not have done if the line had not tive acts of acquiescence were shown, and after I been so located, in which case, perhaps, a grant might
be presumed within the twenty years.” Senator ground the reversal was there put, but inasmuch as Maison in long and elaborate opinion reviews all the supreme court were reversed, he himself has no the cases, and concludes that possession for less than compunctions about “going back” on the doctrine twenty years had never been held a bar, except in overruled. On a closer examination we do not see three cases, namely: Ogden, Van Corlear and Gard that his doctrine differs from that of the court above.
He lays down the rule “that where the bound The doctrine of “oral conveyance" seems to have aries in the deed are clear and unambiguous, and the been “laid,” perhaps stunned, by Judge Cowen's land thereby described can be easily, and without tremendous and unanswerable onslaught, until 1853, doubt or conjecture, ascertained, no acquiescence or when it “walked” again in Clark v. Baird, 9 N. Y. recognition, however unequivocal or often repeated, 183. This case decided, that, where a grantor at the can have the effect of depriving the party of his pos time of the execution of the deed put the purchaser session of land, unless that acquiescence be continued | in possession, and pointed out the boundaries, but the in for at least twenty years.” He continues: “When boundaries so pointed out embraced land not included lands have been located, and such location acquiesced in the deed, occupation with the consent of the in for any time less than twenty years, either with or grantor for a less period than that required by statute without agreement, and during the continuance of to bar a right of entry gave the purchaser no title to such acquiescence, with the knowledge and assent the lands not covered by the deed. Judge Cowen's of the party, but without objection, buildings are doctrine is expressly sustained. erected and improvements made on the land thus Down to this time the conclusiveness of acquiespossessed, the owner of the fee will, nevertheless, at cence had been based upon the notion that it was law, be entitled to recover his land, but the party evidence of a parol agreement establishing the line. building or improving is not remediless; full and per- | But this idea was exploded, in 1857, in Baldwin v. fect relief and protection is afforded him in chancery,” | Brown, 16 N. Y. 359, which put the doctrine on the namely, by a perpetual injunction against the action true ground, namely, that the acquiescence is concluat law. A new trial was granted with but one dis- sive evidence that the location is correct. It became senting voice.
material to decide this in answer to the argument that Intermediate 6th Wendell and 16th Wendell, the where the location was erroneous no bar could be case of McCormick v. Barnum, 10 Wend. 104, was inferred, because an agreement founded on a mutual decided in 1833. Here it was held that an owner of mistake of facts is not obligatory. But the remark land was bound by a division line, recognized by his that “there may be cases in which an express agreesurveyor as correct, where the owner has given deeds ment recognizing an erroneous boundary will conin conformity to a map and field book made by the clude a party; as where the other party, acting upon surveyor, and no efficient attempt is made for twenty- | the faith of such agreement, has made expensive two years to correct the line. Also, Kipp v. Norton, improvements, the benefit of which will be lost to 12 Wend. 127, in 1834, in which mere acquiescence | him if the line is disturbed," seems obiter. Acquiesfor five years was held inconclusive. Also, Dibble v. cence of more than forty years was shown in this case, Rogers, 13 Wend. 536, in 1835, in which the court held
and the court say:
“The plaintiff is precluded, on an acquiescence of twenty years conclusive.
principles of public policy, from setting up or insisting We next run against Clark v. Wethey, 19 Wend. upon a line in opposition to one that has been steadily 320, A. D. 1838. This case decided that where, in a adhered to, upon both sides, for more than forty years." description in a deed, course, distance and monument Judge Cowen's doctrine was also approved in Terry are given, the premises must be located according to v. Chandler, 16 N. Y. 358, A. D. 1857. the deed, and all parol evidence of the intent, acts In Reed v. Farr, 35 N. Y. 113, A. D. 1866, which and declarations of the parties, going to establish a was a case of practical location and acquiescence for different location, is inadmissible as contradicting or more than twenty years, the case of Baldwin v. Brown varying the deed, unless a possession be shown under was followed and approved, and its reasoning adopted. claim of title for such a length of time as will bar In the same year the question was reviewed in a a recovery in an action of ejectment. If, however, learned and exhaustive opinion, in Hubbell v. McCuldoubt or uncertainty exist, owing to the vagueness or loch, 47 Barb. 287. The plaintiff alone, more than obscurity of the description, or the decay or destruc- | twenty years before, ran an erroneous line through tion of the monument, such evidence is admissible in woods, on uncultivated and unimproved lands, having aid of the deed. An actual location by agreement dif- previously been told by the defendant that the deferent from the deed will be obligatory. Judge Cowen fendant would abide by the line as he should find it, says the defense of title by acquiescence for less than and having subsequently described it as run to the the statutory period is in the face of the statute of defendant, but the defendant not having assented to frauds, and also contravenes the doctrine of parol | it, and it not being fixed or adopted. There being no evidence. It would seem at first sight that Judge adverse holding proved, this was held not to amount Cowen does not exactly know what to do with to a practical location, because there was no original Adams and Rockwell, nor fully understand on what I agreement of minds, and no subsequent acquiescence
except silence. The court say: “There has been in the office until 1831. IIe reported the decisions the early cases a good deal of confounding of posses- during that period in seven volumes, including in the sions that began adversely, with this new method of first volume the decisions from 1796 to 1799. He getting round the statute of frauds, now called 'prac was succeeded by James S. Green, who reported in tical location;' but it is time that possession begun three volumes the cases from the November term, adversely, and possessions claimed to have begun 1831, to the end of the November term, 1836. under practical location, if there is any difference, With the February term, 1837, Josiah Harrison should be in some way distinguished.” The court began the duties of law reporter, and reported the find the origin of “practical location” in an acquies cases to the end of the September term, 1842, in four cence between the parties in a line known and un volumes - the last being very thin, and containing derstood by them, of such a length of time as to be an appendix of an alphabetical table of all cases identical with “time immemorial,” or time out of reported in the twenty-two volumes of New Jersey memory." “Rather than disturb such an ancient reports then issued. Mr. Harrison was succeeded hy line, it was the policy of the law to presume a grant.” Robert D. Spencer, who began with the November
In Reed v. McCourt, 41 N. Y. 441, A. D. 1869, it term, 1842, and ended with the July term, 1846, was held that a parol assent as to the location of a having issued one volume. IIe was followed by A. boundary fence, and the actual erection of the fence, 0. Zabriskie, who reported the cases till the end of followed by mutual occupation and acquiescence for the March term, 1855, in four volumes. Andrew a few months, is not sufficient to change the true Dutcher followed, and reported in five volumes the line, and that “scarcely less than twenty years cases both in the supreme court and court of errors would effect such change.
and appeals to 1862. The substance of these authorities on the point of Peter D. Vroom, the present law reporter, began acquiescence seems to be this:
with the June term, 1862, and has thus far issued Where the description of the premises in a deed is four volumes, bringing the cases in both supreme definite, certain and unambiguous, no extrinsic evidence court and court of appeals down to the June term, is admissible to show a different location, unless a posses 1869. The several foregoing reports make up the sion be shown under claim of title for such a length of series cited as New Jersey Law Reports, now numtime as to bar a recovery in ejectment. If, however, the bering thirty-three volumes. description is vague, obscure or ambiguous, or the monu By an act passed in 1832 the appointment of a ments referred to have become decayed or destroyed, such chancery reporter was authorized, who was to hold evidence is admissible in aid of the deed.
office for five years. The chancery reports were pub(To be continued.)
lished separately from the law reports. A volume of
reports was not issued under this provision until 1838, AMERICAN REPORTS AND REPORTERS.
although the cases had been printed annually by the
state. In that year N. Saxton published one volume No. IV.
containing the decisions of Chancellor Vroom from
1830 to the July term, 1832. In 1812 Henry W. The earliest decisions regularly reported in this Green, having been appointed chancery reporter, state, were those from the April term, 1790, to the issued the first volume of his reports, commencing Norember term, 1795, inclusive, which were published with the January term, 1838, leaving an interval of in one volume by Richard S. Coxe, in 1816. The about five years between Saxton's reports and his legislature had provided, in 1806, that a reporter own. He, however, promised to collect and publish should be annually appointed by joint ballot of the the cases during that interval, and did so in his second two houses, whose duty it should be to collect and and third volumes. IIe published three volumes, prepare for publication the decisions of the supreme ending with the January term, 1845. George B. court, and deliver them to the printer of the state HIalstead reported in four volumes the cases from laws, who was directed to print the same with the the April term, 1815, to the end of the June term, state laws each year. The decisions so printed with 1853. John P. Stockton continued the cases in the laws from 1806 to 1813, were afterward col three volumes down to 1858; Mercer Beasley thence lected into two volumes by W. S. Pennington, one of down to 1861, in two volumes; Thomas N. McCarter the justices of the supreme court.
to 1856, in two volumes; and C. E. Green down to In February, 1818, Samuel L. Southard, one of the the November term, 1870. justices of the court, received the appointment of reporter, and reported the decisions from the February term, 1816, to the May term, 1820, in two The first volume of reports published in this state, volumes. In March, of the last name year, the term and the second published in the country, was the of office of the reporter was extended to five years, first volume of Alexander J. Dallas, issued in 1790, and his salary fixed at $200 or $250. In 1821, Wi and containing cases in the supreme court, court of over liam Halstead, Jr., succeeded Mr. Southard, and held | and terminer, court of common pleas and the high
court of errors, between September, 1754, and Decem issued a series of nine volumes, closing with the ber, 1789. The second volume includes cases decided December term, 1845. The last volume contains a in the federal court of appeals in 1781, 1783 and 1787; | valuable index to the whole nine volumes. in the high court of error and appeals in 1792–1795; The reports heretofore noticed were all the results in the supreme court from 1789 to 1790, together of private enterprise, the state not having appointed with some prior detached cases; in the common pleas a reporter, but in 1845 provision was made for the apfrom August to December, 1790; in the supreme pointment of a reporter by the governor, to hold his court of the United States from April, 1790, to August, office for five years; to report not to exceed two voland in the circuit courts of the United States
umes a year, of not less than five hundred and fifty from April, 1792, to 1798. The third and fourth vol- pages, bound in law calf, and to sell them at a price umes contain cases in the United States supreme not to exceed four dollars a volume. It was also precourt from 1794 to 1800, and the state, supreme and scribed that no minority opinion should be reported; other courts decisions down to 1806. The series and that the title of the reports published under the pronumbered four volumes.
visions of the act should be “Pennsylvania State ReIn 1800 Alexander Addison, then president of the ports.” Robert M. Barr received the appointment. courts of common pleas of the fifth circuit, reported He began with the cases of the May term, 1845, one volume of cases in these courts, and in the high and ended his series with the May term, 1849. He court of errors and appeals, between 1791 and 1799, issued ten volumes, known and cited as the first ten including in the volume a large number of his charges of the Pennsylvania State Reports. It may be well to grand juries.
enough to mention here that when counsel wish to Peter A. Browne published, in 1811 and 1815, two refer to this series, they should cite “Pennsylvania volumes of cases adjudicated in the court of common State Reports," as the reports of Watts and Penrose pleas of Philadelphia, between 1806 and 1814. are known as the “Pennsylvania Reports.”
The reports cited as Yeates' reports were published Mr. Barr died about the time of the publication of in 1817–1819, in four volumes, by Charles Smith, from his tenth volume —1849 — leaving a large amount of the manuscripts of Jasper Yeates, one of the supreme materials intended for further numbers. This material court justices, who had prepared them for the press. was arranged by his friend J. Pringle Jones, and These volumes contain the decisions of the supreme published with the consent of the governor, for the court from 1791 to 1808, with a few nisi prius and benefit of his family. This material filled two volumes, circuit court cases.
bringing the cases down to the December term, In 1808, Horace Binney began a series of reports, 1849. George W. Harris was appointed successor to which was concluded in six volumes in 1815, and Mr. Barr, and reported the cases to 1855, in twelve contained the decisions of the supreme court from volumes, numbered in the series 13–24. 1799 to 1914.
James Hepburn was next appointed, but died after In 1818, Thomas Sergeant and William Rawle, Jr., he had partly prepared a volume for the press. began the publication of a series of reports of the Joseph Casey succeeded him and finished his incomsupreme court decisions, commencing at the termina- plete volume. Casey reported, in twelve volumes, tion of Binney's reports in 1814, and terminating with (25–36 Pa. St.) the cases down to 1860. Robert E. the September term, 1828. Their reports numbered Wright succeeded, and continued the cases to 1865, in seventeen volumes. William Rawle continued to fourteen volumes, report the decisions of the supreme court for the The present state reporter — Mr. P. Frazer Smith eastern district until 1835, in five volumes, when he succeeded Mr. Wright, and has reported the decisions was followed by Thomas J. Wharton, who reported from the October term, 1865, to and including the the cases in that district down to 1841, in six volumes. January term, 1870, in fourteen volumes, the last
The cases in the middle, southern and western dis- being volume 64, of the state series. tricts, from 1829 to 1832, were reported by William Besides these supreme court reports, there are the Pawle, Charles B. Penrose and Frederick Watts, in following miscellaneous reports: three volumes, cited as Pennsylvania Reports, or Frederick C. Brightly published, in 1851, decisions Penrose and Watts' Pennsylvania Reports. From at nisi prius, in Philadelphia, from 1809 to 1851. 1832 to 1840 the decisions of the supreme court in Many of the cases were elaborately annotated. these three districts were reported by Frederick Benjamin Grant published, in 1857–64, as an indiWatts, in ten volumes.
vidual enterprise, three volumes of cases in the In 1831 John W. Ashmead published a volume of
These reports include cases between cases decided in the Philadelphia common pleas, quar 1852 and 1863. Alden's condensed reports, in three ter sessions, etc.; and John Miles published, in 1836- | volumes, contain cases between 1754 and 1814. 1842, two volumes of the decisions of the district In 1851 A. V. Parsons, one of the judges of the court of Philadelphia, from 1835 to 1840.
court of common pleas for Philadelphia, published Frederick Watts and Henry J. Sergeant began one volume of select cases in equity, decided in his with the May term, 1841, of the supreme court, and court between 1841 and 1850. The Philadelphi 1