This was an action of trespass guare clausum fregit, to recover damages for entering the close of the plaintiffs and cutting a hedge thereon. The plaintiffs recovered a verdict and judgment for $204, and the defendants appealed.
It is insisted the evidence does not support the judgment, because appellees failed “to show a fee simple title to the land in dispute by regular chain from the government” down to them, but relied upon a deed of the land from Joseph B. Royal, dated October 19, 1844, and possession and payment of taxes thereunder ever since the date of the deed. The jury were justified in finding from the evidence that the land upon which the hedge was situated was embraced within the description in the Royal deed; that under that deed to him, made October 19, 1844, Dr. Shields, the father of appellees, immediately went into possession of the land, living thereon, and continued in such possession to the time of his death, paying the taxes on the land every year, and that ever since the death of their father, appellees had been in such possession, and had continuously paid the taxes on the land. This evidence, as respects title or possession, was sufficient to enable appellees to recover. It was not necessary to show a continuous chain of title from.the government. It would have been enough to have shown no more than possession. The possession was coextensive with the description in the deed.
The premises were two forty-acre tracts of land lying together, north and south of each other. One Brunk owned the two corresponding forties adjoining on the east. It was a question of disputed line between the adjoining occupants. Dr. Shields and Brunk appear to have set out the hedge together. Some point is made upon this, that Shields and Brunk were co-tenants, and Brunk should have joined in the action. The preponderance of the evidence shows the hedge to have been on the land of Shields,—that it was not on the line between the two tracts,—and the question of co-tenancy does not arise in the case.
The deed from William Eamsey to David Brunt, of date May 26, 1836, was properly excluded, as it did not embrace the land in controversy.
Appellants attempted to justify the alleged act of trespass as having been done by them as highway commissioners, in the opening Of a public road which had previously been laid out. It is enough to say upon this head, that the evidence shows the hedge, at least in part, was not within the lines of the road. Enos, the surveyor, who, at the instance of the highway commissioners, laid out the road and made a survey and plat of it, testified that he made a survey of the road on the line dividing the east and west halves of the quarter section; that at the north end the hedge was twenty-five or thirty feet west from the centre of the road, and at the south end, three or four feet. Appellees’ land being on the west, and the road forty feet wide, this would leave the hedge, at the north end, five or ten feet outside of the road, though at the south end it would bring the hedge within the west line of the road. Other testimony in the case made the hedge to be entirely outside of the road.
We perceive no substantial objection to the instructions as applied to the evidence.
It is complained that the damages are excessive. The verdict was for $204. There were one hundred and two rods of the hedge. The testimony was conflicting as to the value of the hedge, and as to how much of it was on appellees’ land. Several witnesses testified the hedge was worth three dollars per rod. We can not say the damages are excessive.
The judgment will be affirmed.
Judgment affirmed.