Cottrell v. Pickering

• Decision Date: 26 January 1907
• Docket Number: 1784
• Court: Utah Supreme Court
• Parties: COTTRELL v. PICKERING

88 P. 696

32 Utah 62

COTTRELL v. PICKERING

No. 1784

Supreme Court of Utah

January 26, 1907

APPEAL from District Court, Third District; M. L. Ritchie, Judge.

Action by Raphael Cottrell against Alexander Pickering. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

A. E Christensen and Kinney & Wilson for appellant.

APPELLANT'S POINTS.

To recover in ejectment the plaintiff must show title in himself. To do this he must either connect himself with a government title or show that he, and the defendant in the action, claim title from a common source. Slauson v Transportation Company, 99 Wis. 20, 40 L. R. A. 825; 3 Elliott on Evidence, sec. 2064; Stevens v. Hauser, 39 N.Y 302.

Richards, Richards & Ferry for respondent.

RESPONDENT'S POINTS.

It is contended by the appellant that the plaintiff must either show a prior possession of the premises in question, or deraign title from the United States, and authorities are cited to support this position. We do not concur with this rule of the law and cite to the contrary: Covert v. Morrison, 49 Mich. 39; Gamble v. Horr, 40 Mich. 561; Warner Ex. v. Page, 24 Am. Dec. (Vt.) 291; Hubbard v. Little, 9 Cush. 475.

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This is an action instituted by plaintiff (hereinafter called respondent) against defendant (hereinafter designated appellant) for the possession of a strip of ground in the complaint alleged to be 2 feet 4 inches wide and 10 rods long, and as being part of lot 4, in block 14, of Salt Lake City survey. The appellant answered by a general denial and by setting up two equitable defenses: (1) An agreed boundary line; and (2) by pleading estoppel arising out of the making of improvements by him on the strip of ground, with the knowledge and consent of respondent, to remove which would cause appellant irreparable injury and damage. Upon substantially the foregoing issues a trial was had to the court. The court, in substance, found that the respondent since the 21st day of October, 1898, was the owner and entitled to the possession of a certain parcel of ground (describing it) which included the strip in question; that on or about the 1st day of January, 1902, appellant wrongfully entered upon a strip of ground along the south side of respondent's land above described, 2.19 feet wide on the west end and 1.4 feet wide on the east end, and that appellant has ever since said date deprived the respondent of the possession thereof; that on April 23, 1902, the respondent and appellant were each the owner in severalty and in possession of two contiguous parcels of land, and that the strip of ground above referred to was part of the parcel of land owned by respondent; that the ownership and right to possession of said strip was not in doubt, and that at no time was there any agreement entered into between respondent and appellant fixing the boundary line between their respective lands; that appellant did not in pursuance of any agreement enter into possession of said strip or make any improvements thereon, nor did respondent represent to appellant that the boundary line between respondent's and appellant's lands was on the north side of said strip, nor did appellant make any improvements thereon with the knowledge, acquiescence, or consent of the respondent. As a conclusion of law the court found that the respondent was entitled to the possession of the strip of ground aforesaid, and a judgment and decree were entered accordingly. From this judgment this appeal is prosecuted. We will consider the errors assigned in their order, and, as the merits of the errors will be made to appear best in connection with the facts, we will state the facts, or the evidence necessary to a full understanding thereof, in connection with the particular error discussed.

At the trial the respondent, in support of his complaint, introduced in evidence a deed describing the parcel of land claimed by him, a plat of the survey made by a competent engineer identifying the property described in the deed and proved possession generally in himself under the deed, together with the fact that respondent had, in 1900, erected a fence on what he supposed to be the south boundary between his and appellant's land. From the plat and survey and the description in the deed, when taken in connection with the survey, it appeared that the fence was 2.19 feet north of the true south line on the west end and 1.4 feet south of said line on the east end of respondent's tract of land. After submitting this evidence respondent rested and appellant moved for a nonsuit upon the grounds (1) that it had not been shown that appellant was in possession of the strip in question; (2) that the title to the land in question had not been proved by respondent. The motion was overruled, and appellant then proceeded to introduce his evidence in support of the affirmative matter set up in his answer, and the court made the findings and entered judgment upon the whole evidence as aforesaid.

The appellant now urges that the court erred in overruling the motion for a nonsuit. Appellant, however, argues only the second ground of his motion. Waiving, for the purposes of this case, the question whether or not a party may obtain a reversal of a judgment against him upon the sole ground that the court erred in overruling the motion for a nonsuit, when it is made to appear from the proceedings had subsequent to the motion for nonsuit that the judgment is right, we will proceed to the determination of whether the court erred in overruling the motion in view of the state of the evidence in this case at the time the motion was made. We have indicated above what this state of the evidence was. We think the court did not err in overruling the motion. It is quite true that generally in ejectment or actions for the possession of real property the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of that of his adversary. It may also be conceded that in order to prove a perfect or complete paper title the plaintiff must connect his title with the original source of title, unless both he and his adversary claim from a common source, in which event it is sufficient to trace his title back to the common source. But the question here presented is whether the respondent was required to show a perfect chain of paper title in order to successfully resist the motion for nonsuit. This seems to be the contention of counsel for appellant. We think that all that was required of respondent was to show a prima facie title as against appellant. This, we think, respondent did when he produced his deed and in connection therewith a survey clearly identifying the premises and showing possession under or pursuant to the deed. The deed and survey established the extent and boundaries of respondent's premises, and his possession under the deed certainly was some evidence of title to all the land included within the boundaries. In view of the foregoing evidence of title the statute (section 2861, Rev. St. 1898) also made a prima facie case of right to possession of all the land contained in the deed. The mere fact that it appeared from the survey that the fence had been erected north of the true boundary would not affect the presumption as to the right to possession created by the statute. Prima facie, at least, possession by any one beyond the fence would, in view of said section, be presumed to be held in subordination to the prima facie title shown by respondent, and would thus be sufficient until overthrown by a stronger right to possession or a better title.

This is, we think, clearly the logic of the cases cited by counsel for appellant. In Stevens v. Hauser, 39 N.Y., at page 304, Woodruff, J., speaking for the court, says:

"Where a party is under the necessity of proving title, it is not enough to simply produce a deed. He must show possession in the grantor or possession accompanying the deed. Without this, he proves no title. But when, as matter of law and fact, it is found or conceded that a party named has title, that is sufficient--his possession is presumed--and the occupation by any other person is presumed to be in subordination of the legal title, unless it appear that the premises have been held adversely to such legal title for twenty years before suit brought." (Italics ours.)

In our state this adverse title would, of course, only be required to be the statutory time. Of course, where one proves a perfect chain of paper title from its original source, no proof of actual possession at all is required. In such event the presumption would be all sufficient and the title would be a complete and perfect title. But, when this is not done, a title prima facie is shown by a grant from some one who held possession, or by such grant and possession under it by the grantee. As against a mere technical objection by any one who, at the time the objection is made, appears to be a mere stranger to the title, such a prima facie title would seem quite sufficient. To require more against such an objector would require every one to prove a perfect chain of title as against every stranger making any kind of a claim. This the law does not require. If the objector has a better or stronger title than the prima facie title proved, then he must show it, and until he does the prima facie title prevails.

In the case of Slauson v. Goodrich Transp. Co. (Wis.), 74 N.W. 574, 40 L. R. A. 825, also cited by counsel for appellant, the same doctrine as announced by the New York case is adopted by Justice Bardeen of the Supreme Court of Wisconsin. At page 575 of 74 N. W., page 828 of 40 L. R. A., it is said:

"Still further, there is no evidence that the...