Altschul v. O'Neill

• Decision Date: 07 August 1899
• Citation: 58 P. 95,35 Or. 202
• Parties: ALTSCHUL v. O'NEILL. [1]
• Court: Oregon Supreme Court

58 P. 95

35 Or. 202

ALTSCHUL v. O'NEILL. ^[1]

Supreme Court of Oregon

August 7, 1899

Appeal from circuit court, Malheur county; Morton D. Clifford Judge.

Action by Charles Altschul against Francis O'Neill, to recover possession of real property. There was a judgment for defendant, and plaintiff appeals. Reversed.

This is an action to recover possession of real property situate in Malheur county, Or. The plaintiff deraigns title from the government of the United States in the following order: (1) Under a grant by act of congress to the state of Oregon approved July 5, 1866, "to aid in the construction of a military road from Albany, Oregon, to the eastern boundary of the state"; (2) a grant by act of the legislative assembly of the state of Oregon, approved October 24, 1866 to the Willamette Valley & Cascade Mountain Wagon-Road Company; (3) by act of congress approved June 18, 1874 authorizing the issuance of patents to the lands covered by the grant aforesaid, and then by mesne conveyances to himself. In pursuance of the conditions of the act of July 5, 1866, the road company filed its selection list, embracing the lands in controversy, on September 16, 1886, which was approved January 27, 1894. On February 10, 1894, patent was issued to said company. The defendant relies exclusively upon the statute of limitations to defeat plaintiff's title. Testimony was introduced at the trial tending to show that defendant went into possession of the premises some time in October, 1886, and continued in such possession until the commencement of the action, January 31, 1898. The defendant testified, in substance, that he never made any effort to take up the land until 1894; that he "didn't think it was necessary"; that his wife, or her former husband, had tried to take it up before; that he saw there were objections to it, and "wanted to see the thing settled"; that he attempted to homestead the land in 1894, and that it was his intention, during all the time he was in possession, to get the land from the government. It was also shown that he made application to enter the land as a homestead January 30, 1894; that a contest ensued with the road company, which was decided against him by the commissioner of the general land office November 7, 1894, and this decision was affirmed by the secretary of the interior March 6, 1896. The court instructed the jury, among other things, as follows: "A person might admit that the United States, or the state, for that matter, was the owner, and at the same time hold adversely to plaintiff or his grantors, and acquire title by so holding for the statutory period of ten years as against plaintiff or his grantors. For example, if you find in this case that Mr. O' Neill, the defendant, recognized the United States as the owner of the land in controversy, and expected to acquire title from the United States, but did not recognize the title as being in the plaintiff, or his grantor, the Willamette Valley & Cascade Mountain Wagon-Road Company, or if he still so recognizes the United States as the owner, and if he has held the land continuously, adversely, and exclusively, under claim of ownership as against the plaintiff, or his grantor, for a period of ten years before the commencement of this action, I instruct you that he would obtain title by adverse possession as against plaintiff or his grantor, and you should find for defendant." The verdict and judgment being for defendant, the plaintiff appeals, and assigns the said instruction as error.

S.B. Linthicum, for appellant.

W.R. King and S.T. Jeffreys, for respondent.

WOLVERTON C.J. (after stating the facts).

There was a contention by counsel for plaintiff at the argument that the legal title to this land did not pass out of the government of the United States until the date of the approval of the selection list on January 27, 1894; that the statute of limitations would not begin to run while such title was in the government, and hence that defendant could not invoke the benefit of the statute, as the approval was less than four years prior to the commencement of the action. It was maintained, on the other hand, that the title passed out of the government when the selection list was filed, September 16, 1886, and therefore that the statute began to run at that date, and, having fully pursued its course, the defendant is the owner in fee. Conceding, but not deciding, that the legal title passed from the government September 16, 1886, we will consider the case upon that hypothesis. Defendant relies upon two defenses: One, that he is the owner of the legal title or fee, acquired by adverse possession; and the other, that the plaintiff, his ancestor, predecessor, or grantor, has not been seised or possessed of the premises within 10 years, hence that he is barred from asserting any claim thereto. Both are based upon the statute which provides that no action shall be maintained for the recovery of real property unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed thereof within 10 years before the commencement of such action. Hill's Ann.Laws Or. § 4. The same acts by which it is claimed the plaintiff was disseised during the statutory limitation are relied upon as constituting the seisin of defendant, holding adversely in the meanwhile, and form the basis of his ownership in fee; so that, if they are appropriate and sufficient to constitute the one defense, they are ample to support the other. We will therefore make no attempt to distinguish between the two as we proceed. The one issue is, which of the parties has the better title? And he who has it should prevail. A perfect title always carries with it, in legal contemplation, lawful seisin and possession. Such seisin and possession is co-extensive with the right, and deemed to continue until ouster by actual possession of another under claim of right. It is well understood that the mere possession will not in itself, however long continue, bar the right of entry in him who is seised of the fee, for it might not have originally been taken or subsequently held with intention to claim the premises as owner, or it might be permissive. Busw.Lim. § 227. As was said by Mr. Justice Baldwin in U.S. v. Arredondo, 6 Pet. 691, 743: "The law deems every man to be in the legal seisin and possession of land to which he has a perfect and complete title. This seisin and possession is co-extensive with the right, and continues till he is ousted thereof by an actual adverse possession." And by Chief Justice Richardson in Lund v. Parker, 3 N.H. 49: "In settling the question whether possession is adverse or not, every presumption is to be made in favor of the legal title. The law presumes that the possession has gone with the title, until the contrary is shown." Hence we may say in the present case, the plaintiff having shown that he was the owner of the legal title by ample documentary evidence, that the presumption of his seisin will continue until it has been shown that he has been disseised and dispossessed of the premises by the defendant; and the burden of proof is upon the defendant to show that his entry was sufficient in character to disseise or dispossess the plaintiff, and that his possession continued to be adverse for more than 10 years prior to the commencement of this action. It is sometimes a difficult question to determine when disseisin has taken place, and the reasoning upon the question is somewhat refined, and not at all times fully understood. The books speak of "disseisin in fact" and "disseisin by election." With the latter we have nothing to do, for it is disseisin in fact that will set the statute of limitations running, and give title after the full time has expired. Blackstone defines disseisin as "a wrongful putting out of him that is seised of the freehold." 3 Bl.Comm. 169. Littleton says: "Disseisin is properly where a man entreth into lands or tenements where his entry is not congeable, and ousteth him which hath the freehold." 2 Co.Litt. § 279. And Coke that: "Every entry is no disseisin, unless there be an ouster also of the freehold." Id. Lord Mansfield, in Taylor v. Horde, 1 Burrows, 107, says: "Disseisin therefore must mean some way or other turning the tenant out of his tenure, and usurping his place and feudal relation." Thornton, J., in Unger v. Mooney, 63 Cal. 586, after citing various authorities, remarks: "It must be with intent to usurp the place of true owner, and put him out of possession." Richardson, C.J., in Towle v. Ayer, 8 N.H. 57, says: "Seisin then may be defined to be the possession of land under a claim, either express or implied by law, of an estate amounting at least to a freehold." Further on: "Disseisin is a trespass, but it is not every trespass which amounts to an actual disseisin. A disseisin is a continued trespass under a claim of title." Again: "To constitute an actual disseisin, there must be an entry with intent to usurp the possession, and to oust another of his freehold." And, summing up: "There is, then, an actual disseisin whenever one man wrongfully enters upon the land of another, with intent to usurp the possession, and, retaining the possession, actually turns the owner out, or at least keeps him out." And Chancellor Wendell, in Varick v. Jackson, 2 Wend. 167, 202: "By a careful examination of the authorities, it will be found that there could be no disseisin in fact except by the wrongful entry of a person claiming the freehold, and an actual ouster or expulsion of the true owner, or by some other act which was tantamount." Mr. Justice Miller,

in Harvey v. Tyler, 2 Wall. 328, 349, says: "We think this law to be too well settled to need argument to sustain it. There must be title somewhere to all...