Anderson v. Francis

• Decision Date: 07 April 1936
• Docket Number: Case Number: 23704
• Citation: 1936 OK 312,177 Okla. 47,57 P.2d 619
• Parties: ANDERSON v. FRANCIS et al.
• Court: Oklahoma Supreme Court

1936 OK 312

57 P.2d 619

177 Okla. 47

ANDERSON v. FRANCIS et al.

Case Number: 23704

Supreme Court of Oklahoma

Decided: April 7, 1936

Syllabus

¶0 1. ADVERSE POSSESSION - Title by Prescription - Requisites.

Title to land cannot be acquired by adverse possession unless the possession is open, notorious, hostile, and exclusive, and it is also essential that such possession, in order that it may ripen into title, should be shown to be continuous and uninterrupted for the full statutory period. The moment the possession is broken it ceases to be effectual, because as soon as, and as often as, a break occurs the law restores the constructive possession of the owner.

2. SAME - Occupancy - Hostile Character.

One who occupies land not claiming to own the same, but to aid and assist a former owner, who appears in the chain of title as having conveyed all right, title, and interest in same, which conveyed title is vested in occupant's adversary, such possession, although for the full statutory period, is inconsistent with claim of title in occupant, and such possession cannot ripen into title.

3. SAME - Effect of Payment or Nonpayment of Taxes.

The payment of taxes is not a controlling circumstance, but it is one of the means whereby a claim of ownership is asserted, and a failure to pay taxes weakens a claim of ownership, by adverse possession.

4. SAME - Finding Against Defendant on Claim of Adverse Possession Sustained.

The general finding of the court, that defendant had failed to sustain his claim of title by adverse possession, is held to be sustained by the evidence.

Appeal from District Court, Oklahoma County; W.G. Long, Assigned Judge.

Action to quiet title by J.L. Francis et al. against A. Anderson et al. Judgment for plaintiffs, and defendant Anderson appeals. Affirmed.

Jasper Edwards and Hall & Thompson, for plaintiff in error.

Stuart, Bell & Ledbetter, for defendants in error.

PER CURIAM.

¶1 This is an action to quiet title filed by Francis et al., as plaintiffs, against Anderson et al., defendants, and the parties will be referred to as they appeared in the lower court; that is, Francis et al. as plaintiffs, and Anderson as defendant.

¶2 Plaintiffs alleged that they were in the actual and exclusive possession of the land in question; "that the defendants had no title to any portion of the land, but that the defendant Anderson is claiming ownership and title, and conspiring with others to eject the plaintiffs from possession"; and that the claims of the defendants to said land cast a cloud upon the plaintiffs' title, which plaintiffs were entitled to have removed and that the defendants be permanently enjoined from interfering with the title or possession of the plaintiffs.

¶3 The defendant Anderson claimed title by adverse possession for more than 15 years, and alleged that as early as 1908 he had built a permanent fence around the property, and prayed that his title be quieted and that he be decreed the legal and equitable owner.

¶4 Numerous witnesses were introduced by both the plaintiffs and defendant.

¶5 The plaintiffs' evidence showed clearly that the plaintiffs had title to the land in controversy by an unbroken recorded chain of title from the time patent issued by the government, and that the plaintiffs had paid all taxes on said land from 1912 up to the time of the filing of the suit in January, 1932.

¶6 Plaintiffs' evidence was further to the effect that the defendant had not been in the possession of the land continuously, but such possession as he had was irregular, and a "scrambling possession."

¶7 The defendant Anderson testified that he went into possession of the land in 1908; that he built his fence around the land in 1908. Anderson also testified that in the summer immediately before the filing of the suit he had seen one of the former owners, a Mrs. Cato, and promised this former owner to help her; that he would employ an attorney for her; that this former owner had told him to look after the land, and that if she were successful, defendant expected to receive a portion of her share. And here, let us observe that from the record and written instruments introduced, this Mrs. Cato and her husband had conveyed this land, with other lands, by deed dated March 2, 1910, which was duly recorded, and relied upon by plaintiffs as a part of their chain of title.

¶8 Anderson made no claim that he had paid any taxes or offered to pay any taxes. The evidence tended to show that he was rightfully on other land, in the vicinity, not the subject-matter of the action, and that he may have erected fences, but the evidence of the witnesses was conflicting as to the land that defendant claimed he enclosed, and also conflicting as to whether the fences were erected by defendant, or others. The evidence was also conflicting as to whether there was any enclosure at all embracing the land in litigation with the land that defendant may have been rightfully in possession of, and also conflicting as to the location of the fences. The evidence was also conflicting as to who had erected two small box houses on the property.

¶9 At the close of the testimony judgment was rendered in favor of the plaintiffs, and the defendant appeals.

¶10 The question presented for decision on this appeal is whether the general finding of the court in favor of the plaintiffs is sustained by sufficient evidence.

¶11 Under the statutes of this state, and the decisions of our court, a title by prescription is recognized, and a title acquired by adverse possession is a title in fee simple, and is as perfect a title as one by deed from the original owner.

¶12 The decisions of our court, however, are in harmony with the great weight of authority, and that is that the doctrine of adverse possession, or title by prescription, is to be taken strictly, and every presumption is in favor of a possession in subordination to the rightful owner. Title by adverse possession, therefore, must be established by clear and positive proof. It cannot be made out by inference. Clark v. Atchison, T. & S. F. Ry., 144 Okla. 244, 291 P. 86; Honeyman v. Andrews, 124 Okla. 18, 253 P. 499; Rodgers v. International Land Co., 111 Okla. 98, 238 P. 407; Huseman v. Rauch, 159 Okla. 296, 15 P.2d 60.

¶13 It was the contention of the defendant that his prescriptive title had been proven by the plaintiffs, for the reason that the plaintiffs, in September, 1915, had given...