Handlan v. McManus
| Decision Date | 10 March 1890 |
| Parties | Handlan, Appellant, v. McManus |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.
Affirmed.
Cunningham & Eliot for appellant.
(1) The possession which will put in operation the statute of limitations must be hostile in its inception, or, having been begun in consistency with rightful title, its character must have been changed. Gordon v. Eans, 97 Mo. 587; Budd v. Collins, 69 Mo. 129; Zeller v Eckert, 4 How. 289; Tyler on Adverse Enjoyment [1 Ed.] p. 876. (2) The possession must have been exclusive, by which is meant occupancy to the exclusion of any acts of possession on the part of the rightful owner. A mixed possession is the possession of him who has title. Railroad v Maffitt, 6 S.W. 600; Brownville v. Cavazos, 100 U.S. 138; 3 Washburn on Real Prop., p. 149; Brimmer v. Prop'rs of Long Wharf, 5 Pick. 131; Congregation v. Greenwich, 145 Mass. 112; Angell on Limitations, sec. 410. (3) The statute of limitations does not run unless a right of action exists in the person to be barred. Campau v. Lafferty, 50 Mich. 114; Tyler on Adverse Enjoyment, 859. (4) The purchaser of a lot of ground covered by a house which also extends over a part of an adjoining lot acquires from his grantor no benefit of adverse possession of any land not included in his deed. Green v. Devies, 31 N.W. 914; Lynde v. Williams, 68 Mo. 360. (5) Possession of land under mistake as to the true boundary, without intention of claiming beyond the true line will not work a disseizin. Tamm v. Kellogg, 49 Mo. 118; Houx v. Batteen, 68 Mo. 84; Wilson v. Lerche, 90 Mo. 473; Schad v. Sharp, 95 Mo. 574. (6) A license or permission implies such incidental rights as may be necessary for its enjoyment. 1 Washburn on Real Prop., p. 661.
D. D. Fassett and Sim T. Price for respondent.
(1) Two ingredients are essential to constitute adverse possession: The factum possession and the hostile intention. Sedg. & W. T. L. T. [2 Ed.] sec. 729. Adverse possession is that kind of continued occupation and enjoyment of real estate which indicates an assertion of right on the part of the person maintaining it. Rivers v. Thompson, 43 Ala. 633. The character of adverse possession is given not by notice to persons interested, but by the nature of the acts done by the party. There must be a hostile intent, and that intent must be manifested by outward acts of an unequivocal kind. The open act of entry on land, with the declared intent to disseize, constitutes a disseizin without notice to the disseizee, or knowledge on his part of the entry and ouster. Lodge v. Patterson, 3 Watts, 74; Bradley v. West, 60 Mo. 41; Moore v. Thompson, 69 N.C. 120; Davis v. Bomar, 55 Miss. 671; Key v. Jennings, 66 Mo. 357. There are some acts so notorious in their character that they raise a conclusive presumption of notice to the owner of the adverse claim, such as the erection of buildings, etc. Tiedeman on Real Prop., sec. 697. (2) Continuous dominion, manifested by continuous acts of ownership, makes continuous possession. Coleman v. Billings, 89 Ill. 189. The possession of the landlord and his tenants is a continuous possession. Sedg. & W. T. L. T., sec. 746; Crispin v. Hannavan, 50 Mo. 549. (3) It is sufficient to show an unequivocal claim of title adverse to the real owner. Tiedeman on Real Prop., sec. 699. And the fact that permanent and valuable improvements have been placed on the land in dispute is evidence to be considered as showing an intention to hold adversely to all. Hamilton v. West, 63 Mo. 93; Waldrum v. Ballew, 68 Mo. 164; Cole v. Parker, 70 Mo. 379. This is the general doctrine of the courts on this subject. Tyler on Adverse Poss., sec. 906. (4) A fence, building or other improvement is not essential to constitute an adverse possession. Acts of ownership, under a claim of right, visible, are sufficient to authorize the court to find such possession. Leeper v. Baker, 68 Mo. 400-407; Sedg. & W. T. L. T., sec. 732. The wrong-doer need not be in exclusive possession of the entire premises. His exclusive possession of a part, if he only claims title to that part, will work a disseizin as to that part as effectually as if the owner had been driven out of possession of the whole tract of land. Tiedeman on Real Prop., sec. 698. The statute of limitations begins to run from the date of ouster. Sedg. & W. T. L. T., sec. 730; Robinson v. Lake, 14 Iowa 421-424.
-- This is an action of ejectment for a strip of land three or four inches wide, on the north line of Locust street, in the city of St. Louis, and extending north one hundred and four feet, to the width of five inches to an alley. The defense made and brought forward on the trial, by the instructions, is the statute of limitations.
On September 18, 1848, Henry Patterson, being the owner of fifty feet front, and extending back to the alley, conveyed the east half to Seth Ranlett, and on the same day he conveyed the west half to Charles Ranlett. The plaintiff derives title to the east half by mesne conveyances from Seth Ranlett, and the defendant to the west half from Charles Ranlett. The strip of land in dispute lies on the west line of the plaintiff's lot and is included in his deeds, and belongs to him unless he and his grantors have lost it by adverse possession.
In 1852, one Rudolph was the owner of the west lot, and Seth Ranlett was still the owner of the east lot. Ranlett then had a brick house on his lot, extending back thirty-nine feet from the front line. Rudolph found just twenty-five feet of vacant land between Ranlett's west wall and a house west of his, Rudolph's lot, and he took possession and excavated this twenty-five feet, and built a house thereon extending from front to the alley. Rudolph inserted the beams of his house in Ranlett's west wall, and raised it one story, for which use he paid Ranlett a money consideration. He also built a wall from the north end of the Ranlett wall to the alley, placing the outside thereof on a line with the west face of the Ranlett wall. Thus matters stood until 1885, when the defendant, having become the owner of the west lot by the will of her husband who acquired it in 1871, removed the old Rudolph house and built a new one on the exact same land, placing the beams of the new house in the Ranlett wall as before. Beneath this wall, thirty-nine feet, in length, and some five feet below the surface of the ground, was a footing course of stone a few inches thick, extending out from the wall so as to cover five or six inches. The defendant removed this projection when...
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