Rogers v. Joyce

Mellen C. J.

delivered tbe opinion of the Court.

By the report of the Judge who presided in the trial of this cause it appears that the demanded premises are a part of a public highway in the town of Brunswick : and that the legal title to the same is not in either of the parties. The demandant rests his right to recover, upon his possessory title merely. The jury returned their verdict in favor of the tenant ; and the question is whether it ought to be set aside for any of the reasons stated in the motion filed by the demandant. The authorities cited by the counsel for the tenant seem to establish a distinction between an exclusive possession of a piece of land, belonging to an individual who has a right to the absolute controul of it; and one which though belonging to an individual, is subject to a public easement, as in the case before us. But we do not mean to decide the cause upon the ground, that the possession of the demandant, while it continued, was not a seisin, of the kind alleged in the writ; because the facts do not require us to decide this point. The only possession of the piece of land demanded which Rogers ever had, was by means of the building which Milica placed on it under his permission and lease in 1825. Milica, the lessee for five years, died in September 1818, having paid rent in the mean time to Rogers. In October following, the tenant entered into the building under Milled’s administratrix, who accounted for the rent to Rogers. About two months after this Joyce purchased the building ; and in 1819 the selectmenof the town ordered the removal of the building from off the highway ; and Joyce accordingly submitted to their order and removed it; and the highway which had for some years been thus incumbered with a public nuisance, was again opened and became, in this place, unobstructed. This act of removal, in which every citizen had an interest, and to effect which, had a legal right, dissolved the connection and privity betwen Rogers and Milled, and Joyce claiming under him, and the administratrix on his estate, and completely terminated the possession of Rogers as to the demanded premises on which the building stood. The land was thus restored again, to the public, for their use. It is true that soon after, Joyce erected a porch and laid a platform on the ground, which had before been covered -by Milieu's building ; but this act was no injury to Rogers or his rights ; for he had lost all the possessory right he ever had ; the act was an encroachment on the public highway, and a violation of the rights of the public; in other words the building of the porch and laying down of the platform, instead of being a continuance of a legal possession on the part of Rogers, was an illegal intrusion on the part of Joyce, not into private property, but public; it was no more nor less than a common nuisance ; and from such a wrongful act, we are all satisfied, that there cannot result any proof of the alleged seisin on the part of the demandant. The opinion of the whole court, therefore, is that notwithstanding the instructions which were given to the jury by the presiding judge, there is no ground for granting a new trial.