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and of such a character as to indicate exclusive ownership in the occupant. No definite rule as to what constitutes sufficient possessory acts can be given, as the matter must necessarily depend largely upon the nature and character of the property, and must be determined from the circumstances of each case, and is for the jury. A substantial fence erected around land is a sufficient evidence of disseisin,2 and the limit and extent of the occupant's claims; but the fence must be substantial, and a brush fence, or a fence made merely by lapping trees one upon another, although the person claiming the land occasionally entered upon it and cut wood and timber," and sold a part of the land, — have been held not sufficient to constitute a disseisin, although done with the knowledge of the owner. A fence erected merely for convenience in working a farm, and not for the purpose of marking the boundaries according to the title, is of no weight in determining acts of possession. A fence must not only be substantial, but it must also extend around the whole lot, and one built only on three sides of it has been held insufficient; but the rule would be otherwise where upon one side there is a natural substitute for a fence, as a ledge of rocks, or other natural obstruction that renders a fence unnecessary, and in connection with the fence actually constructed forms a sufficient boundary and indicia or badge of ownership of the lot claimed. The rule may be said to be that where an enclosure consisting partly of natural and partly of artificial obstructions is relied upon as in itself establishing a possessio pedis, it is the province of the jury, upon all the proofs, and considering the quantity, locality, and character of the land, to decide whether or not the artificial barriers were sufficient to notify the public that the land was appropriated, and to impart to the claim of appropriation the notoriety and indicia of ownership.10
"must be actual, continued, and visible," was held erroneous, although in fact the possession was held under a tax title which rendered it necessarily hostile to the owner of the original title.
1 Soule v. Barlow, 49 Vt. 329.
2 Ringold v. Cheney, 4 Hall's L. J. (Md.) 128; Miller v. Shaw, 7 S. & R. (Penn.) 129; Munshower v. Patten, 10 id. 334; Mercer v. Watson, 1 Watts (Penn.), 330; Burns v. Swift, 1 S. & R. (Penn.) 436; Smith v. Hosmer, 7 N. H. 436; Hank v. Senseman, 6 S. & R. (Penn.) 21. If a person enters under a deed, and fences in more land than his deed covers, he will hold the whole if he keeps up the fence for the full statutory period. Levettenham v. Leary, 18 Hun (N. Y.), 284.
Hale v. Gliddon, 10 N. H. 397.
4 Coburn v. Hollis, 3 Met. (Mass.) 125; Parker v. Parker, 1 Allen (Mass.), 245;
Slater v. Jepherson, 6 Cush. (Mass.) 129; Jackson v. Schoonmaker, 2 Johns. (N. Y.) 230.
5 Hale v. Gliddon, ante; Slater v. Jepherson, ante.
Slater v. Jepherson, ante; Parker v. Parker, ante.
7 Soule v. Barlow, 49 Vt. 329. In Allen v. Holton, 26 Pick. (Mass.) 458, it was held that the building of a fence upon a part of another's land, for the purpose of protecting his crops, and with no intention to exclude the owner from the lot, although the person building it occasionally cut wood and brush from the lot enclosed, did not constitute a disseisin.
8 Armstrong v. Risteau, 5 Md. 256. But see Dennett v. Crocker, 8 Me. 239; Pope v. Hanmer, 74 N. Y. 246.
9 Louis v. Gorman, 29 Mo. 593.
In a Massachusetts case,1 where land was enclosed by a river and a fence and road, and a disseisor occupied as near it as was convenient, it was held that this might be, if so intended by the occupant, a possession of the whole lot, although there was a narrow strip uncultivated. In a Maine case,' where land was claimed by actual possession and enclosure by a fence, and was bounded on one side by a pond and on the other by lands owned by the claimant, it was held that although his fences did not surround the land in question on all sides except that next to the pond, yet it was proper to submit the facts to the jury to determine whether they were erected for the purpose of enclosing the land in controversy, or merely for the protection of his own land. Where the party relies upon a fence to establish his title to land, he cannot extend his possession beyond its limits, except by an actual occupancy of the land outside of the limits of the fence for the full statutory period. Thus, where a claimant to land, who had enclosed a hundred acres of land and cultivated it for fifteen years, subsequently enclosed fifty acres additional, and occupied it in connection with the other for six years, it was held that he only had title to the hundred acres.5 Unless expressly made so by statute, the mere circumstance
1 Allen v. Holton, 20 Pick. (Mass.) an action of ejectment, the possession must 458.
2 Dennett v. Crocker, 8 Me. 239. 8 See also Soule v. Barlow, ante. Ringold v. Cheney, ante; Hull v. Gittings, 2 H. & J. (Md.) 391; Goewey v. Wrig, 8 Ill. 238.
Hull v. Gittings, ante. Adverse possession is made out by the coexistence of two distinct ingredients: the first, such a title as will afford color; and, second, such possession under it as will be adverse to the right of the true owner; and whether these two essentials exist is, in all cases, a question of law, to be determined by the court, though the facts upon which they are founded are for the finding of the jury. Baker v. Swan, 32 Md. 355. P. was the equitable owner of sixty acres of land, of which three-fourths of an acre had been cleared and fenced. He left the land in charge of a person living on an adjoining tract, who chopped wood upon it, and cultivated the clearing. The land was in a densely timbered and sparsely settled country, and the neighbors generally understood that the land belonged to P. Held, to be such a possession as constituted notice of P.'s right to one who took a mortgage from the holder of the legal title. Wickes v. Lake, 25 Wis. 71. In order to defeat
be, for the full statutory period prior to the institution of the suit, an open, notorious, and continuous occupancy of the land, or some part thereof, under color of title to the whole, and must be taken in good faith under a claim adverse to plaintiff and those from whom he derives title, Turner v. Hall, 60 Mo. 271; and must be such as operates as a notice of the claim of title to all parties, Wilder v. Clough, 55 N. H. 359. And under this rule it has been held that for the purpose of preventing the establishment of a right to maintain across one lot of land a drain leading from another lot, by adverse use continued for twenty years, the testimony of a person who within that time owned the first lot is admissible, that during the time he owned it, and with ample opportunities, if visible, he never knew of the existence of the drain. Hannefin v. Blake, 102 Mass. 297. A claim of title based on continuous possession is not impaired by the fact of occasional occupancy by persons not distinctly shown to be in under the claimant, if the same is not positively proved to have been adverse, nor the claim at any time to have been abandoned. Raynor v. Lee, 20 Mich. 384. Compare Whalley v. Small, 29 Iowa, 288.
that a person erected a fence around a lot, however substantial, is not of itself sufficient evidence of exclusive occupation; it must also be shown that the person claiming not only held the land adversely, but also that he had the exclusive occupation of the land surrounded by the fence for the entire statutory period.1
SEC. 258. Occupancy where Premises are not enclosed. As previously stated, the question whether an alleged possession is marked by the characteristics requisite to make it adverse, and the foundation for a title by occupancy, is not wholly a question of law, and is a question for the jury, under proper instructions from the court. The question as
operations of building a shed, quarrying rock, erecting a limekiln, and cutting wood, to burn it for the purpose of making lime on the land in dispute, continued uninterruptedly for more than seven years, constitute such a possession as will give a good title to the person claiming adversely under it. Moore v. Thompson, 69 N. C. 120. It is for the jury to say whether one who does acts of ownership upon wild land, and afterwards buys it, was in possession before his conveyance, and under the grantor or adverse to him, possession at that time under color of the grantor's title being necessary to support a plea of the statute, and the grantor never having been personally in possession, the land being wild, and his claim a tax title. Wiggins v. Holley, 11 Ind. 2. Possession of land is prima facie evidence of title thereto; and an exclusive possession and occupancy for ten years, under a claim of absolute title, and where there is no adverse showing, is sufficient evidence for a jury to infer a title in fee-simple in the occupant, on an appeal from the appraisement and assessment of county commissioners, of land taken for a railroad. Gulf R. R. Co. v. Owen, 8 Kan. 409. For a person holding lands in adverse possession, to accept a lease from the owner of the title, interrupts the running of the statute of limitations. The lease, if not void for fraud, &c., creates the relation of landlord and tenant; and during the term there can be no adverse possession by the tenant, unless by some act which would create an adverse possession if done by a tenant who entered under a lease. Abbey Homestead Assoc. v. Willard, 48 Cal. 614.
charge to the jury that "in the case of rough pasture-land actual occupation by an ordinary enclosure is sufficient evidence of occupation," was held erroneous. "We think," said PARK, J., "the court intended to be understood that if a person encloses rough pasture-land by an ordinary fence, it is a sufficient evidence that he is in occupation of the land enclosed. If this is the proposition, we cannot assent to it. The party may be a trespasser by so doing. He may be hired by another to do it. He may have the permission of another to construct the fence for other purposes than the taking possession of the land. . . . We think the remaining part of the charge is erroneous, which is, that the exclusive use and occupation of the land enclosed by ordinary stone walls during the period of forty years is evidence of adverse possession. This part of the charge withdraws from the jury entirely what constitutes the essence of adverse possession, to wit, the adverse character of the exclusive possession during the forty years. Adverse possession includes exclusive possession, which is only an ingredient in its composition. The exclusive possession must have a character that does not ordinarily belong to it, and that character must be proved to the satisfaction of the jury, like any other fact. It can never be assumed as a matter of law from exclusive possession, however long continued." See also Walsh v. Hill, 41 Cal. 571.
2 Webb v. Richardson, 42 Vt. 465. LORD MANSFIELD, in the celebrated case, Taylor v. Horde, 1 Burr. 60, laid down the broad rule that "disseisin is a fact to be found by the jury." This rule has been adopted in our courts; and it is inva
1 In Russell v. Davis, 38 Conn. 562, a riably held that the question as to whether
to what constitutes adverse possession, as well as what evidence is necessary to establish it, is for the court; but the question as to whether
an occupancy was with an adverse intent must be found by the jury. Poignard v. Smith, 6 Pick. (Mass.) 172; Hall v. Deeney, 10 Vt. 593; Jackson v. Joy, 9 Johns. (N. Y.) 102; Bradstreet v. Huntington, 5 Pet. (U. S.) 402; Kinsell v. Daggett, 11 Me. 309; Jackson v. Stephens, 13 Johns. (N. Y.) 496; Colburn v. Hollis, Met. (Mass.) 125; Gayette v. Bethune, 14 Mass. 55; Hopkins v. Robinson, 3 Watts (Penn.), 205; Brandt v. Ogden, 1 Johns. (N. Y.) 156; Jackson v. Sharpe, 9 id. 163; Jackson v. Wheat, 18 id. 40; Jackson v. Waters, 12 id. 365; Jackson v. Ellis, 13 id. 118; Smith v. Burtis, 9 id. 174; Jack son v. Newton, 18 id. 355; Jackson v. Thomas, 16 id. 293; Jones v. Porter, 3 P. & W. (Penn.) 132; McCluny v. Ross, 5 Wheat. (U. S.) 124; Iler v. Routh, 3 Miss. 276; Cummings v. Wyman, 10 Mass. 468; Wallace v. Duffield, 2 S. & R. (Penn.) 527; Schwartz v. Kuhn, 10 Me. 274; Atherton v. Johnson, 1 N. H. 34; Munshawer v. Patten, 10 S. & R. (Penn.) 334; Overfield v. Christie, 7 id. 172; Bolling v. Petersburgh, 3 Rand. (Va.) 536; Malson v. Frye, 1 Watts (Penn.), 433; Bell v. Hurtley, 4 W. & S. (Penn.) 32; McNair v. Funt, 5 Mo. 300; Jackson v. Jawdin, 9 Johns. (N. Y.) 102; Rogers v. Madden, 2 Bailey (S. C.), 321; Mill Dam Corporation v. Bullfinch, 6 Mass. 229; Bracken v. Martin, 3 Yerg. (Tenn.) 55; Warren v. Childs, 11 Mass. 222; Read v. Goodyear, 17 S. & R. (Penn.) 350; Pray v. Pierce, 7 Mass. 383; Stephens v. Dewing, 2 Aiken (Vt.), 112. The proof to establish adverse possession must be clear and positive, and not left to inference. Weaver v. Wilson, 48 Ill. 125; Jackson v. Borner, id. 203 But when once established, it is presumed to continue, in the absence of proof of abandonment, or of possession by another under claim of title. Marston v. Rowe, 43 Ala. 271. Upon the trial of a question involving such a title, the claimant may introduce the record of proceedings and judgment in an action of trespass previously brought by him against a third person in respect of the same premises. Such record is not evidence of his title, but it is evidence that his possession was
under claim of title, which is material. Hollister v. Young, 42 Vt. 403. Where a claimant relies upon his possession to defeat the lien of a judgment, he must prove actual possession, and it is not sufficient to prove that he had such possession as a deed gave, without proving by the deed itself, or otherwise, the character and extent of the possession which the deed gave, or what occupation was had under the deed. Eagle & M. Co. v. Bank of Brunswick, 55 Ga. 44. And an actual possession of some part of the premises must be shown. If an easement is claimed by prescription, the use of the right is the only evidence of the extent to which it was acquired; and such use must be shown to have been adverse, continuous, and uninterrupted, with the knowledge and acquiescence, express or implied, of the owner of the soil in or over which it is acquired, and while such owner was legally capable of repelling the exercise of the right.
Peterson v. McCullough, 50 Ind.
And where, while the right was being exercised, and before the statutory period had elapsed, the owner asserts his rights by an action for the injury resulting from such use, it cannot ripen into a right. Cobb v. Smith, 38 Wis. 21. But mere verbal objections to, or denial of, the right of user, is not such an interruption as will prevent an acquisition of the right by prescription. Kimball v. Ladd, 42 Vt. 747. The occasional cutting of timber and boiling of sugar on the land of another, by the occupier of an adjoining tract, and the extension of his lines so as to include a small portion of the meadow-land, is not such a possession as will give title under the statute of limitations. In such cases, the statute only extends to the ground actually included in the interference. Washabaugh v. Entriken, 36 Penn. St. 513. Evidence of the customary use of woodland, as by taking firewood and lumber therefrom, has been held in Pennsylvania not to avail to destroy a valid title in another, unless accompanied by proof of actual possession by residence or cultivation of part of the tract to which the woodland belongs, under color of title, or
the possession in a given case is adverse, or under the owner's title, is for the jury, and the person setting up the claim takes the burden of establishing all the requisites to make his title by occupancy complete.1 But the court may decline to submit the question of adverse possession to the jury, where, from the undisputed facts, as a matter of law, no such possession exists.2 The character of the possession requisite to establish a title by adverse possession has already been adverted to, and from what has been said it will be readily understood that the possession must be of a different character from that which marks the conduct of a mere trespasser, it must be so open, notorious, and important as to operate as a notice to all parties that it is under a claim of right; that the right of the true owner is invaded and denied with an intention on the part of the occupant to assert a claim of title adverse to his; 3 that is, a person must possess, use, and occupy the land as owner, and as an owner would do; and an occasional exercise of dominion by broken and unconnected. acts of ownership over lands which may be made productive is in no respect calculated to assert to the world a claim of right, but, in the language of TAYLOR, C. J.,"such conduct bespeaks the fitful invasions of a conscious trespasser rather than the confident claims of a rightful owner." There can be no hardship in limiting the claims of a wrong-doer to his actual occupancy, or in requiring him to occupy in such a decisive manner as to indicate his claim of ownership; and the distinction between the claim of a person under naked possession and one who claims under color of title, both as to the extent
by marked boundaries, taken and maintained for the statutory period. Hole v. Rittenhouse, 27 Penn. St. 116. Evidence of occupation of wild, unenclosed land, by cutting firewood and bushes, and trimming the trees thereon, and, in one instance, within twenty years, by cutting off the entire growth of wood upon the land, and leaving it to grow over again, is held insufficient in Massachusetts to establish a title by possession, although such acts are within the knowledge of the owner. Parker v. Parker, 1 Allen (Mass.), 245. Occupancy through a tenant is sufficient. Smith v. Jackson, 76 Ill. 254. Fencing in a small portion of the highway, not sufficient to seriously obstruct public travel, although done by an adjoining land-owner under claim of title, does not constitute an adverse possession which can ripen into title. Brooks v. Riding, 46 Ind. 15. Evidence that a house and granary were built upon the forty acres in controversy, and that one half of the tract was cultivated and enclosed, held, to warrant a finding that
the occupant was in possession of the whole forty. Teabout v. Daniels, 38 Iowa, 158. It is not necessary that the adverse character of the possession should be actually brought home to the knowledge of the plaintiff by affirmative proof, if it was adverse to all others, open, notorious, and held under claim of title. Scruggs v. Scruggs, 43 Mo. 142.
1 Herbert v. Henrick, 16 Ala. 581; Runey v. Schoneberger, 2 Watts (Penn.), 23; Jones v. Porter, 2 P. & W. (Penn.) 132; Gill v. Fauntleroy, 8 B. Mon. (Ky.) 177; Baker v. Swan, 32 Md. 355; Washburn v. Cutter, 17 Minn. 361.
2 Argotsinger v. Vines, 82 N. Y. 308; Bowie v. Bahe, 3 Duer (N. Y. Superior Ct.), 35; Nearhoff v. Addleman, 31 Penn. St. 279.
Beatty v. Mason, 30 Md. 409; Carroll v. Gillion, 33 Ga. 539; Thomas v. Babb, 45 Mo. 384; Soule v. Barlow, 49 Vt. 329; Paine v. Hutchings, 49 id. 314.
Jones v. Ridley, 2 N. C. 400.