Costello v. Edson
| Decision Date | 18 July 1890 |
| Citation | 46 N.W. 299,44 Minn. 135 |
| Parties | John J. Costello v. Rufus P. Edson and others |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for St Louis county, Stearns, J., presiding, refusing a new trial after verdict for defendants.
Order affirmed.
Ensign Cash & Williams, for appellant.
White Shannon & Reynolds and Edson & Hanks, for respondents.
OPINION
This is an action of ejectment for the recovery of two contiguous platted lots in Upper Duluth. The defendants had a verdict in their favor, and the plaintiff has appealed from an order refusing a new trial. The only grounds upon which the appellant seeks a reversal of the order are that the evidence in the case of the adverse possession of the defendant Hibbard was insufficient to justify submitting to the jury the question whether Hibbard had maintained an adverse possession for 20 years prior to the commencement of this action, in January, 1889, and that for the same reason the verdict was not justified by the evidence. In the spring of 1870, according to the evidence on the part of the defendants, the defendant Hibbard constructed a story and a half frame dwelling-house on one of the lots. In the same year he inclosed both lots with a fence, and set out raspberry, gooseberry, and currant bushes and apple trees, the shrubbery and trees being on both lots. He also built a barn there. Hibbard moved into the house in 1870, and resided there for some 11 years, excepting a period of less than a year, when he was absent, but during which time he left a part of his household goods in the house, intending to return there, as he did do. One Jones occupied the premises under contract with Hibbard immediately after the latter left, in 1881, and remained in possession some three or four years. After that it was sometimes occupied by tenants under Hibbard, and sometimes has been vacant for periods as long as six months at a time; but he always had the key of the house in his possession, excepting when the premises were in the occupation of some one holding under him. He paid the taxes upon the land, made improvements, and his possession and acts of dominion were undisputed by any other claimant. His original entry upon the land was with a claim of title under a tax-deed of both lots, although the deed was invalid. A sufficient case of adverse possession, continuously maintained from 1870 to the time of the commencement of the action, was shown. The fact that the house was unoccupied at different periods, under the circumstances to which we have briefly referred, did not interrupt the continuous dominion and possession of Hibbard. Actual residence upon the land is not a necessary condition of adverse possession, nor is constant occupancy of a house, erected by the disseisor, necessary, where all the conditions show a continuance of his established dominion. Mackentile v. Savoy, 17 Serg. & R. 104, 109; Coleman v. Billings, 89 Ill. 183; Ewing v. Burnet, 11 Peters 41; Ellicott v. Pearl, 10 Peters 412, 442; Kerr v. Hitt, 75 Ill. 51.
But the possession from the time of the erection of the house, in 1870, to the time of the commencement of this action, did not cover the full period of 20 years; and the principal question in the case is whether adverse possession was shown during the period prior to 1870, and as far back as January, 1869. There was evidence in the case going to establish these facts bearing upon that matter, in addition to those already referred to: Hibbard's first entry upon the lots was in 1863, under the tax-deed above referred to. The land had then been platted into lots. These lots were covered with a thick growth of underbrush. One large tree and several smaller trees were standing there. The surrounding lands were in a similar condition. In 1863, Hibbard went with a surveyor, and by surveys found and marked these lots. In 1864 he went again, and cut all the small brush off these lots, camping there, with the servant whom he employed in that work, two or three days. In 1865 he cut all the timber excepting the one large tree, and piled the brush; camped there two or three days. In 1866 he camped there again two or three days; "burned the stuff all up; cleared it up." In 1867 he cut the large tree, and sawed it into posts to be placed under the house to be erected. They were subsequently so used. In 1868, having been informed that he was not on the right land, he resurveyed it, grubbed up the stump of the large tree, and "finished clearing up the ground." All the stumps had then been taken out. In 1869 he had other timber brought on the premises to be used in making the foundations for a house. The following spring the house was built. During the years in which he did the work of clearing upon the land he left his tools upon the premises from year to year. He paid the taxes every year. The contention on part of the appellant is that this evidence was insufficient to show adverse possession by Hibbard. It is true that the real owner of lands, although they be wild and unoccupied, is to be deemed as constructively in possession; and the acts of a wrong-doer infringing upon the rights of the owner are to be construed strictly against the invader. Clear proof of actual adverse possession will be required to place the wrong-doer in a position to avail himself, in defence of his possession, of the limitation barring the right of the owner to recover. But we are of the opinion that the defendants' case justified the conclusion that Hibbard was in adverse possession of this land during the year 1869, and prior thereto.
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