Cahill v. Cahill

• Citation: 54 A. 732,75 Conn. 522
• Parties: CAHILL et al. v. CAHILL et al.
• Decision Date: 17 April 1903
• Court: Connecticut Supreme Court

54 A. 732

75 Conn. 522

CAHILL et al.

v. CAHILL et al.

Supreme Court of Errors of Connecticut.

April 17, 1903.

For majority opinion, see 54 Atl. 201.

HAMERSLEY, J. (dissenting). The plaintiffs were bound to prove that Julia Cahill owned and possessed the locus at the time of her death. This was essential to establish that legal title in the plaintiffs, without which they cannot recover. Property may be acquired through any kind of lawful conveyance from its owner. This is the principal, and for the great mass of property the only, mode under our law of acquiring ownership. The fact of conveyance may be established by any appropriate evidence, and involves proof of the person who made the transfer, his ownership of the property, and the validity of the transfer as made. Where the conveyance is by writing, and especially where the law requires it to be by writing, it must be proved by the production of the original writing. When the writing has been lost, its existence and contents may be proved by relevant, secondary evidence. As ownership draws after it possession, and possession, especially of personal property, is often a badge of ownership, possession may become a relevant fact in proving the existence and contents of such writing. It may be that all evidence of a conveyance, primary or secondary, is wanting, and the possessor holds property without a conveyance from any one. For some cases of this kind the law provides other modes of acquiring property, viz., possession and user which is not by virtue of another's right from time immemorial, or such possession for a fixed period unbroken and unchallenged. The latter mode of acquisition is confined mainly to land; the former mainly to intangible rights in property, generally described as easements. Property in these rights may be acquired by prescription as well as by grant. The property is deemed to originate in a grant By its very nature it is created as property through the assent, voluntary or compelled, of the owner of the tangible thing it burdens. Ownership of the easement is acquired through a valid grant, whether recent or ancient; but such ownership may be acquired through possession for time immemorial as truly and as fully as by a valid grant This mode of acquisition may rest in part on the effect of occupancy, which, as to movables, is the foundation of separate property rights; but some support is to be found in the elementary principle of jurisprudence which forbids the litigation of claims unsupported by facts within the memory of man. The length of this period has fluctuated, but is now for the most part an arbitrary term. Acquisitive prescription is illustrated when one prescribes in a que estate, but for the most part it is not used in the English law in its direct form. Its substance is secured through a legal fiction. Instead of asserting an ownership acquired by immemorial usage or possession, the owner is permitted to assert an ownership acquired by some indefinite and nonexistent grant, and the facts which establish his acquirement of ownership by possession are treated as conclusive proof of some grant which is not proved, and in most cases cannot be proved, because it never existed. Such a legal fiction does not alter the substance of things. In every such case the ownership is in reality acquired through possession," and is not acquired through a grant. Possession as a mode of acquiring property establishes ownership, when as an evidential fact it is wholly incompetent to prove an ownership acquired by grant. It happens in some cases that evidence is introduced tending to prove the existence of an actual particular grant as well as evidence tending to support the acquisition of ownership through possession. Such possibility has naturally led to some confusion between the force of possession as a mode of acquiring ownership and the evidential value of possession merely as a fact which may or may not become relevant or material in proving an actual and particular grant. The distinction, however, is real and important. A. sues B. for trespass in crossing his land. B. attempts to establish two defenses—one, ownership of a right of way, acquired through user for time immemorial (now provable by adverse possession for 15 years, or its equivalent, an indefinite and fictitious grant conclusively presumed from a possession for time immemorial); and the other, ownership of a right of way acquired through a grant from A. to B., made 10 years before the bringing of suit. User or possession of a right of way for 14 years is proved. Some evidence is produced tending to prove a grant of the way claimed, etc., made by A. to B. 10 years before, and the loss of the deed. The court charges the jury, as bearing on the first defense, that, if B. has proved the requisite possession of a right of way for 15 years, his ownership is established, but, if he has proved such possession for 14 years only, his ownership is not established; and, as bearing on the second defense, that, if the evidence admitted as relevant to the fact of a deed made 10 years before by A. to B. granting the right of way satisfies the jury that such a grant was made, B. has established his ownership by actual grant, although the deed has been lost, and that the fact that B. actually used the way at the time of the alleged grant and afterwards might be considered, so far as that fact might be relevant to the actual making and terms of the alleged grant. Such a charge might be substantially correct, but it would be incorrect if the court should further charge that, if the jury cannot find a possession for more than 14 years, and are not satisfied that A. made a grant 10 years before, by the evidence relevant to that fact, they may consider the evidence of possession for 14 years and the evidence relevant to the unproved grant together, and from the whole evidence thus considered may presume an actual grant.

The error centers in the inaccurate use of the word "presume." Possession may confer title as truly as grant confers title. Each is a mode of acquiring ownership. But the potency of possession as a means of acquiring title, when insufficient for that purpose, cannot be used to effect the relevancy of one or more acts of ownership by the alleged grantee of a specified grant to the fact of the execution, contents, and validity of that grant. In discussing the ownership of intangible property or incorporeal hereditaments, it is often necessary to use the words "grant," "presumption," "possession," with differing meanings, indicated only by the context, and there is much excuse for the occasional confusion of things, related but really independent; but there is far less excuse for any confusion of this nature in discussing the ownership of land. Here the distinction between the acquisition of ownership through possession and its acquisition through a conveyance from a former owner to the present possessor is more clearly marked. Under the early English law, land, unlike property in intangible rights, was not the subject of prescription in any form. Twiss v. Baldwin, 9 Conn. 304; 2 Black. Comm. 264. Substantially the only mode by which ownership could be transferred from one owner to another was some form of conveyance. Bare possession, the apparent right of possession, and even the right of possession might be acquired without ter minating ownership of land once acquired and not conveyed. This ownership might be asserted and established through the writ of right, and then the lost possession be recovered. The limitation of the writ of right to a definite period of 60 years (St. 32 Hen. viii) to a limited extent, and the adaptation of the action of ejectment to the trial of title with the limitation of the exercise of a right of entry to a period of 20 years (St. 21 Jac. I) to a greater extent, rendered the practical acquisition of ownership by possession possible in many cases. After the passage of the statute of James I, cases might arise where the writ of right would be available to the true owner; but since the enactment of St. 3 & 4, Wm. iv, for limitations of actions relating to real property, possession for 20 years as a mode of acquiring ownership of land has been more clearly recognized, and has sometimes been termed an acquisition of ownership through legislative conveyance.

In this state, however, possession as a mode of acquiring ownership of land has been recognized from earliest days; the only other method being some form of conveyance. The first settlers claimed to have acquired absolute ownership of lands within our limits mostly by purchase from the native indians and partly by conquest, and their ownership in fact rested on these claims until the charter of 1602, which granted and confirmed to the charter government all land within its jurisdiction, to be holden of the king in free and common socage. Subsequently lands belonging to particular persons were held according to this tenure, but the land tenures of England were in no other way ever recognized as a force within our limits. The claims of ownership and purchase by conquest were never abandoned, and in 1793 our Legislature declared that by the establishment of our independence the citizens of this state became vested with an allodial title to their lands, and therefore it declared "that every proprietor in fee simple of lands has an absolute and direct dominion and property in the same." In 1639, substantially coincident with the establishment of civil government, it was enacted that all land allotted to any particular person should be recorded. Such record, as well as the record of any subsequent sale, was compulsory, and sale without record was of no value. A certified copy of the record served the purpose of a deed. 1 Col. Rec. p. 37. In 1660 it was enacted that all future conveyances should be made by deed duly recorded, and the requisites to the validity of such deed were prescribed. 1 Col. Rec....