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that, if the entry was made by the permission of the owner, possession, however long continued, will be treated as the possession of such owner, and in subservience to his title, until the person in possession has disclaimed, and set up an adverse title thereto in himself or some third person, and given the owner notice thereof, actual or constructive; but that an adverse user may be presumed from a long possession without the payment of rent or other recognition of the owner's title, or an account for the rents or profits of the land. But while, as already stated, it is held in those States that the entry need not necessarily be made under a claim of title, yet whether it is so made or not is treated as an important element in the determination of the question whether there has in fact been an`adverse user, and an actual ouster of the true owner; but the real question as to whether there has been an actual ouster of the true owner and a consequent disseisin is one which depends upon all the circumstances, and may be solved in favor of the occupant, although no claim of title in himself is shown to have existed. It is the fact of exclusive occupancy, using and enjoying the land as his own, in hostility to the true owner, for the full statutory period, which enables the occupant to acquire an absolute right to the land under these statutes. The motive of the occupant is not material, provided his occupancy is actual and exclusive, and after the manner of the owner of the fee."
While, strictly speaking, as held in Connecticut and some other States, it may not be necessary that the entry or possession should, in all cases, be under a pretence or claim of title by the occupant in himself, yet it is an indispensable requisite that the entry and possession, or the possession where the entry is not wrongful, should be hostile to the true owner; and a person who merely claims the improvements
See sec. 265, Landlord and Tenant; sec. 266, Co-tenants; Atkyns v. Horde, 2 Camp. 689.
2 Fishar v. Taylor, 1 Camp. 217.
3 SEYMOUR, J., in Johnson v. Gorham, 38 Conn. 521; Patterson v. Reigle, 4 Penn. St. 201.
4 French v. Pearce, Conn. 440. In Johnson v. Gorham, 38 id. 513, a charge to the jury as follows: "A person to acquire a title by possession must have the actual use and possession of the land. It is essential that the possession should be adverse to the right of the owner, and that the possessor should hold the land, claiming it as his own, and denying the right of everybody else," was held erroneous, in that it gave the jury to understand that an occupancy under a claim of title was necessary, when it was only necessary that it should appear that the defendant had had the exclusive occupancy of the premises, using them as his own for the requisite statutory period.
5 French v. Pearce, ante.
6 Griswold v. Bard, 5 Johns. (N. Y.) 230. A naked possession without any claim of title is not sufficient, Brandt v. Ogden, 1 Johns. (N. Y.) 156; Humbert v. Trinity Church, ante; nor is an entry by the permission of the owner, with the expectation that the land will be conveyed to him as a gift, Howard v. Howard, 17 · Barb. (N. Y.) 663; Pease v. Lawson, 33 Mo. 55. It is not indispensable that the entry should be adverse in its inception. Jackson v. Brink, 5 Cow. (N. Y.) 483. If an adverse claim is subsequently set up, either by taking a deed of the land or otherwise by unequivocal acts of ownership, it is enough. Jackson v. Smith, 13 Johns. (N. Y.) 406; Jackson v. Frost, 5 Cow. (N. Y.) 346. There must be an assertion of a right, to the exclusion of every other person. Sherry v. Frecking, 4 Duer (N. Y.), 452. And it must be under a claim of the entire title, and which excludes every presumption of title in an
upon land cannot acquire a title by any length of possession.1
other. Hoyt v. Dillon, 19 Barb. (N. Y.) 644. Thus, F. entered into possession of land confessedly without title, and afterward entered into a contract with T., who covenanted to give him a deed for the land. T. had no title, and only claimed to hold under B. Thereafter, F. assigned the contract to S., who took possession thereunder, and afterward received the deed from T. Subsequently, he obtained a deed from B., the patentee and true owner. It was held that the original possession of F., being without title, was to be deemed the possession of B., the patentee; and that the possession of S., under the covenant from F. to T. was not adverse to B., so as to defeat a deed made by him during that possession. Jackson v. Sharp, 9 Johns. (N. Y.) 163. In Pepper v. O'Dowd, 39 Wis. 538, it was held that in order to constitute adverse possession entry must be made with a defined claimi of title and possession, and that the claim cannot be enlarged, except by acts equivalent to a new entry and a new possession, and consequently that to establish a title by possession to a known farm outside the actual possession taken, the known extent of the farm at the time of entry must be established; and that an adverse possession founded on such entry is limited to that extent. And under this rule it was held that to make the actual adverse possession of a part of a tract of farming land, which was once possessed and used as several farms by several owners, constructive adverse possession of the whole tract, it must be shown that the whole tract is included in some of the claimants' title papers, and that the several farms have been joined together in one known farm before the entry under which the claim exists was made. An adverse possession, to constitute a bar, must be an actual and hostile possession, and not a mere trespass. It involves an assumption of the right to the land in question from the time it is alleged to have
1 Davenport v. Sebring, 52 Iowa, 364. Where one of several heirs took exclusive possession of land belonging to a number of heirs, and improved it, without interference from them, although they lived in the immediate neighborhood, and no action was brought by them for more than twenty
commenced, and a continued holding with the assertion of right. It must be visible and notorious, and exclude the exercise of ownership by the other party, and must be hostile in such sense as to indicate intent to occupy exclusively. Miller v. Platt, 5 Duer (N. Y.), 272. The person having the legal title to land has the coustructive possession of it. To overcome that possession, and perfect title by operation of the statute of limitations, or create the presumption of a grant to such land, there must be an actual possession of some part of the land in dispute, Snoddy v. Kreutch, 3 Head (Tenn.), 301; Foster v. Grizzle, 1 Coldw. (Tenn.) 530; as it is the invasion of the owner's rights by an actual visible possession of the land, with intent to claim it against the owner, that lays the only proper foundation for the operation of the statute of limitations; a mere adverse claim to the land for the period required to form the bar is not sufficient. Smith v. Lee, 1 Coldw. (Tenn.) 549. To make a possession adverse, two things must concur. There must be an entry under a color of right claiming title hostile to the true owner and the world, and the entry must be followed by the possession and appropriation of the premises to the occupant's use, done publicly and notoriously so that other claimants may take notice and all others may be cognizant of the fact. Dixon v. Clark, 47 Miss. 220. And the adverse character of the possession must be proved to the satisfaction of the jury like any other fact, and it cannot be assumed as a matter of law from mere exclusive possession, however long continued. Russell v. Davis, 38 Conn. 562. And the proof must be clear that the party held. under a claim of right, and with intent to hold adversely. Grube v. Wells, 34 Iowa, 148; Washburn v. Cutter, 17 Minn. 361 Baker v. Swan, 32 Md. 355. A mere póssession without claim of title can afford no presumption of right from lapse of time.
five years, it was held that ejectment would not lie; and also that the heir in possession had acquired a title to the land by adverse possession for the requisite period, and that no claim of title was necessary to perfect an adverse holding Campau v. Dubois, 39 Mich. 294.
some of the States it is expressly provided that where the possession is not held under any writing,1 it must be under a claim of title, that is, that the person must occupy and claim the premises as his own; and practically in all the States there must be an entry or possession under a claim of title, or such a user of the premises as raises a presumption of such a claim, and in many of the States a claim of title, as well as exclusive and continuous occupancy, is held to be indispensable; 2 and generally it may be said that the intention of the occupant is a material element in determining whether or not the possession is adverse in such a sense as to operate as an actual ouster of the true owner and defeat his right of entry. It is so well settled as to be regarded as a rule that, where there is no claim of title in the occupant, his possession cannot be adverse to the true title, upon the principle that, where a person is in possession, making no claim whatever to the premises, his title, in presumption of law, is in amity with and subservience to the true title. Indeed, the courts of Georgia have extended this rule so far as to hold that, where a person goes into possession under such circumstances, he holds as tenant at will to the true owner, and cannot, by secretly attorning to another, change the character of his possession so as to make it adverse." Taggart v. Stanberry, 2 McLean (U. S. C. C.), 543 ; Stillman v. White Rock Mfg. Co., 3 W. & M. (U. S.) 539; Peyton v. Steth, 5 Pet. (U. S.) 485. In Wilkes v. Elliott, 5 Cr. (U. S. C. C.) 611, it was held that there must be an entry under claim of title, or a subsequent claim of hostile title and possession under it. In Ewing v. Burnett, 11 Pet. (U. S.) 41, it was held that an entry operates as an ouster, or not according to the intent with which the act was done.
1 Mississippi, New York, Florida, Louisiana, Colorado, South Carolina, California, Wisconsin, Nevada, Texas, Arizona, Utah, Dakota, Idaho, and Montana.
2 Hale v. Glidden, 10 N. H. 397; Hunter v. Chrisman, 6 B. Mon. (Ky.) 463; Kinchelaev. Treadwell, 11 Gratt. (Va.) 605; Ewing v. Burnett, 11 Pet. (U. S.) 41; Harvey v. Tyler, 2 Wall. (U. S.) 328.
3 Brown v. Gay, 3 Me. 126; Howard v. Rudy, 29 Ga. 154; Brown v. Cockerell, 33 Ala. 45. In Simmons v. Nahant, 3 Allen (Mass.), 316, the court held that, in order to gain a possessory title to land lying in common and undivided, there must be proof of acts of ownership done with intention of asserting a title thereto.
Harvey v. Tyler, ante; Kinchelae v.
Treadwell, ante; Jackson v. Waters, 12 Johns. (N. Y.) 365; Jackson v. Howe, 14 id. 405; Johnson v. Irwin, 3 S. & R. (Penn.) 291; Markley v. Amos, 2 Bailey (S. C.), 603; Jackson v. Thomas, 16 Johns. (N. Y.) 293. A person under such circumstances is a mere intruder. "Intrusio est ubi quis, cui nullum jus competit in re nec scintilla juris, possessionem vacuam ingreditur, quæ nec corpore nec animo possidetur, sicut hereditatum jacentum." Bracton, Book IV. ch. 2, fol. 160. In Book II. ch. 17, fol. 39, possession is called "nuda, ubi quis nil juris habet in re, nec aliquam juris scintillam, sed tantum nudum pedum possessionem." As previously stated, such possession has always been treated as in subservience to the true title. Jackson v. Porter, 1 Paine (U. S. C. C.), 457; Jackson v. Camp, 1 Cow. (N. Y.) 605. And says STORY, J., in Society, &c. v. Pawlet, 4 Pet. (U. S.) 480. No ouster can be presumed in favor of such a possession."
Gay v. Mitchell, 35 Ga. 139. See also opinion of RYAN, J., Link v. Doerfer, 42 Wis. 391, where he intimates that a person so possessing land may subject the tenant to some form of action for the profits. But this is mere obiter.
Although such naked possession is treated as held in subservience to the legal title, yet it implies no privity of contract with the legal owner, or duty towards him or the estate; and while his possession, unless its character is changed, may not ripen into an adverse title, upon the principle that, unless adverse in its inception, it will be presumed to continue as it began, yet this does not preclude the occupant from setting up an adverse claim at any time he chooses, either by taking a conveyance under a tax title or any conveyance, or by any act which changes the character of his occupancy from amicable to adverse.1 "The principle," says the court in a case previously cited," that possession must in its inception be adverse, and continue so, is not well understood." In those cases in which that observation occurs nothing had happened to change the character of the first possession, and that was considered as denoting quo animo the possession was held under the first entry.
"If one enters on land without any claim or color of title, the law adjudges the possession to be in subservience to the legal owner, and no length of possession will render the holding adverse to the title of the owner; but if a man enters on land, without claim or color of title, and no privity exists between him and the real owner, and such person afterward acquires what he considers a good title, from that moment his possession becomes adverse."
It is the intention to claim title which makes the possession adverse; but this intention must be evinced and effectuated by the manner of occupancy; and neither a mere claim of title without occupancy, nor a mere occupancy without an intent to claim title, are sufficient." "It is not the possession alone," says THOMPSON, J., "but that it is accompanied with the claim of the fee, which, by construction of law, is deemed prima facie evidence of such an estate." The intention need not be expressed, but may be inferred from the manner of occupancy; and in one case, where the possession was shown to have been in fact adverse, it was held that the statute barred an entry after the lapse of the requisite period, although the occupant practised deceit, and lulled the owner into the belief that he did not intend to claim adversely.
1 Blackwood v. Van Vliet, 30 Mich. 118; Bowman v. Cockrill, 6 Kan. 311; Blakeley v. Bester, 13 Ill. 708; Moss v. Shear, 25 Cal. 38; Link v. Doerfer, 42 Wis. 407; Hamilton v. Wright, 30 Iowa, 480; Stubblefield v. Borders, 92 Ill. 279.
2 Jackson v. Thomas, ante.
8 Jackson v. Porter, 1 Paine (U. S. C. C.), 457; Bartholomew v. Edwards, 1 Houst. (Del.) 17. In Campau v. Dubois, 39 Mich. 274, it was held that no claim of title is necessary to perfect a title by adverse holding.
4 Abell v. Harris, 11 G. & J. (Md.) 371; Cooper v. Smith, 9 S. & R. (Penn.) 26.
5 Brown v. Gay, 3 Me. 126; Allen v. Holton, 20 Pick. (Mass.) 458; Betts v. Brown, 3 Mo. App. 20; McNamara v. Seaton, 92 Ill. 498; Skinner v. Crawford, 54 Iowa, 119.
Jackson v. Porter, 1 Paine (U. S. C. C.), 457.
7 Conyers v. Kenan, 4 Ga. 308.
SEC. 257. Entry or Possession without Color of Title. - It is well settled that, where a person relies upon naked possession as the foundation for an adverse claim, there must be a pedis possessio,.or an actual occupancy; and the possession cannot be extended by construction beyond the limits of his actual occupation;1 and it must not only be actual, but also visible, continuous, notorious, distinct, and hostile,2
where an entry is made without the permission of the owner, the possession is presumed to be adverse, until the contrary is shown. Niel v. McElhenny, 69 Penn.
1 Colburn v. Hollis, 3 Met. (Mass.) 125; Jackson v. Hardenburgh, 2 Johns. (N. Y.) 234; Hale v. Gliddon, 10 N. H. 397; Ferguson v. Peden, 33 Ark. 150; Wilson v. McEwan, 7 Oreg. 87; Schneider v. Botsch, 90 Ill. 577; Peterson v. McCullough, 50 Md. 35; Foster v. Letz, 86 Ill. 412; Wells v. Jackson Manuf. Co., 48 N. H. 491. In Alabama, the title in such cases is restricted to lands enclosed and under cultivation. Hawkins v. Hawkins, 45 Ala. 482; Edge v. Medlar, 82 Penn. St. 86; Clarke v. Wagner, 74 N. C. 791; Bristol v. Carroll Co., 95 Ill. 84; Humphries v. Huffman, 33 Ohio St. 333; Foster v. Letz, 86 Ill. 412. Where a person acquires a title by naked occupancy upon a river, his title cannot be extended by construction to the centre of the river. Riley v. Jameson, 3 N. H. 23; Coming v. Troy Iron Co., 34 Barb. (N. Y.) 529. But a person may so use the river as to acquire title to the land lying under it. Thus, where a person entered upon land covered by a mill-pond adjoining his estate, and drove spiles and erected buildings thereon, and occupied them for sixty years, it was held to give him a good title to the extent of the space covered by the buildings, although the water continued to flow between the piles. But it has been held in Wisconsin, where a person who has an equitable title to wild land, goes into possession and clears and fences a small portion of it, and chops wood upon the balance of the land and cultivates the clearing, and the neighbors generally understood that the land belonged to the occupant, that he had a sufficient constructive possession of the whole lot to constitute a notice to a person taking a mortgage from the holder of the legal title. Wickes v. Lee, 25 Wis.
71. But in Hawkins v. Hudson, 45 Ala. 482, where a person went into possession of land under a parol gift, and actually occupied only a part of the lot, it was held that his title could not be extended beyond his actual occupancy, as against a bona fide purchaser from the owner of the legal estate. A person going into possession without color of title, but as a mere intruder, acquires possession "inch by inch" of the part which he occupies, and he cannot extend his title beyond the limits of his actual occupation for any distance, however small. Prescott v. Johnson, 9 Martin (La.), 123; Brooks v. Clay, 3 A. K. Mar. (Ky.) 545. In Miller v. Shaw, 7 S. & R. (Penn.) 143, DUNCAN, J., in discussing this question, said: "A wrongful possession cannot be extended by construction; constructive possession always accompanies the right. It is a contradiction in terms that a man by wrong should have any right, and that this right by wrong should be extended by construction. There cannot be two conflicting constructive possessions, one in the owner and the other in the trespasser. The right always draws to it the possession, and it there remains, until seized by the wrong-doer, whose possession is strictly possessio pedis; who must necessarily be confined to what he has grasped, his real and actual possession. Beyond that, no length of time will protect him; because beyond that the owner's pos session has never been changed; it always, in contemplation of law, has continued in him. These are the dictates of common sense, of common justice, and of the common law." Roger v. Benlow, 10 S. & R. (Penn.) 305.
2 In Sparrow v. Hovey, 44 Mich. 63, a refusal of the court to charge that when title is claimed by an adverse possession it should appear that the possession had been "actual, continued, visible, notorious, distinct, and hostile," but merely charging the jury that the possession