Dyer v. Eldridge

• Decision Date: 21 February 1894
• Docket Number: 16,640
• Citation: 36 N.E. 522,136 Ind. 654
• Parties: Dyer et al. v. Eldridge et al
• Court: Indiana Supreme Court

36 N.E. 522

136 Ind. 654

Dyer et al. v. Eldridge et al

No. 16,640

Supreme Court of Indiana

February 21, 1894

From the White Circuit Court.

Judgment is affirmed.

M. M Sill, for appellants.

J. H Gould and G. R. Eldridge, for appellees.

OPINION

Dailey, J.

On the 23d day of September, 1891, the appellees, Eldridge and Eldridge, filed their complaint in the White Circuit Court against the appellants and appellee Arthur J. Brackney, to quiet their title to a strip of land in the northwest quarter of section 19, in township 25 north, range 3 west, in said county, particularly describing said strip in the complaint by metes and bounds.

To this complaint the defendants filed an answer in general denial. The cause was tried at the November term, 1891, of said court, and a judgment rendered for the plaintiffs.

A new trial as of right under the statute was obtained, and at the April term, 1892, of the White Circuit Court, the case was again tried before the Hon. John M. La Rue, a special judge, which also resulted in a finding and judgment for the plaintiffs.

The defendants separately and jointly moved for a new trial, and filed written reasons therefor. This motion was overruled and exception taken. Thereupon the defendants moved in arrest of judgment, which was overruled, and excepted to, and from the final judgment this appeal is prosecuted.

The appellants have abandoned all their assignments of error, except the second and fourth.

Under the second specification, it is contended that the judgment should be reversed because it is contrary to the evidence.

Appellees Eldridge proved a paper title to the southwest quarter of said section 19. The contest was as to their northern boundary. For more than a third of a century the southwest quarter was occupied continuously by the appellees herein and their grantors direct and remote, under fence. By recent survey, it was ascertained that the north line of said quarter was not where the fence was and is, but some rods south thereof. The appellees claim that their lands on the north are bounded by the old fence, regardless of where the quarter section line may really be. Appellants concede that this fence has been standing for more than twenty years. It only remains for appellees to show that they and their grantors have been in possession and occupied the lands, as owners, to the fence for a period exceeding twenty years.

This the record shows: Allen M. Eldridge, testified that the old fence marked the northern boundary of the farm; that the farm was cultivated, pastured and enclosed up to the fence, and there never was any controversy about it.

William Woods testified, that his father had owned the land, buying it perhaps thirty years before; that he remembered the old fence on the north line of the farm; that it never was changed; that his father and family always occupied and farmed the land up to the fence, also using the groves for pasture land; that afterwards one Matthews so occupied it.

Thomas Sleeth testified, that he had known the farm forty years; that the fence was there when he first became acquainted with the farm in 1853 or 1854, and was an old fence then; that all the owners and occupants of the farm occupied the land up to the fence, farming it.

Arthur J. Brackney testified, that he had lived on the same section for thirty-five or forty years; that the rail fence on the north of appellees' farm marked his south line; that the fence had been there ever since he occupied the land immediately north of it; that he lived on and occupied the land down to the fence; that the occupants of appellees' farm occupied the land in controversy as part of their farm all that time up to the fence, ever since he lived there.

James McLean testified, that he had known the fence forty years; that he thought the various owners farmed the land up to the fence, and supposed the fence was on the line until the present trouble arose.

William Woods, recalled, again testified as to the occupancy of the farm to the fence, under claim of title, by James K. Woods (grantor to appellees), James Matthews, and Alfred Woods, witness's father; that he had seen stock in there almost every year from the time he could remember.

Robert Lawrie, surveyor, testified, that the farms indicated that the fence was the line; that it was the division between the farms; that the disputed land was pastured.

As shown by the record, it is clear that for nearly a half century appellees Eldridge and their grantors, direct and remote, have openly, visibly, notoriously and adversely occupied and farmed the lands in controversy south of the fence.

Appellants' counsel insist that it is the rule of law that plaintiffs must have had either color of title, or that they and their grantors must have claimed title for more than twenty years. In this counsel are, in part, mistaken. No color of title is essential. It is not, and never has been, the law of this State that there must be color of title before an adverse possession will ripen into a title. Collett v. Board, etc., 119 Ind. 27, 21 N.E. 329; Riggs v. Riley, 113 Ind. 208, 15 N.E. 253; Law v. Smith, 4 Ind. 56; O'Donahue v. Creager, 117 Ind. 372, 20 N.E. 267; Bell v. Longworth, 6 Ind. 273.

"Adverse user is such an use of the property as the owner himself would exercise, disregarding the claims of others entirely, asking permission from no one, and using the property under a claim of right. Such a use of the property continued without interruption for a period of twenty years or more, is equivalent to a grant." Nowlin v. Whipple, 120 Ind. 596, 598, 22 N.E. 669.

Actual possession of lands under a claim of title is sufficient notice of such claim to put others upon inquiry as to the extent and nature of the claim. Meni v. Rathbone, 21 Ind. 454; Jeffersonville, etc., R. R. Co. v. Oyler, 60 Ind. 383; Tuttle v. Churchman, 74 Ind. 311; Jeffersonville, etc., R. R. Co. v. Oyler, 82 Ind. 394; Barnes v. Union School Tp., 91 Ind. 301; Campbell v. Indianapolis, etc., R. R. Co., 110 Ind. 490, 11 N.E. 482.

"In this country and in England the doctrine seems quite firmly established, that open, notorious, unequivocal and exclusive possession of real estate, under an apparent claim of ownership, is notice to the world of whatever claim the possessor asserts, whether such claim is legal or equitable in its nature." 4 Cent. L. J., 122.

"If knowledge is brought home to the purchaser that a third person is in the possession and apparent ownership of the land, it ought, under ordinary circumstances, to be deemed sufficient information to the second purchaser that the possessor is the owner of the fee." Vaughn v. Tracy, 22 Mo. 415 (422).

"When title is in controversy, it is to be shown by legal proof, and continued disseizin for twenty years is as effectual for that purpose as a deed duly executed. The title is created by the existence of the facts, and not by the exhibition of them in evidence." Inhabitants of School District v. Benson, 31 Me. 381 (385).

Such title is so perfect that, according to Lord Chancellor Sudgen, a court of equity will compel specific performance of the contract of purchase. Scott v. Nixon, 3 Drury & Warren, 388.

That is, the title is transferred from the person who lost it to the person gaining it by the disseizin. Irish Soc. v. Richards, 4 Irish Eq. Rep. 179.

It (disseizin) operates, says Baron Parke, as "a parliamentary conveyance of the land to the person in possession. " Jukes v. Sumner, 14 M. & W. 38 (41).

Exercising that dominion over the thing used, taking that use and profit it is capable of yielding in its present condition, such acts being so repeated as to show that they are done in the character of owner, and not of an occasional trespasser, constitute adverse possession. Baum v. Currituck, etc., Club, 96 N.C. 310, 2 S.E. 673 (675 and 676).

Actual occupancy, by residence, cultivation or inclosure, as in this case, is not required to constitute adverse possession. Cooper v. Morris, 48 N.J.L. 607, 7 A. 427.

The correct doctrine is declared in La Frombois v. Jackson, 8 Cowen, 588 (603), as follows: "The actual possession and improvement of the premises, as owners are accustomed to possess and improve their estate, without any payment of rent, or recognition of a title in another, or disavowal of a title in himself, will, in the absence of all other evidence, be sufficient to raise a presumption of his entry and holding as absolute owner; and unless rebutted by other evidence, will establish the fact of claim of title."

The court further said: "Every possession, then, is adverse and entitled to the peaceful and benignant operation and protecting safeguard of the statute, which is not in subservience to the title of another, either by a direct acknowledgment of some kind, or an open or tacit disavowal of right on the part of the occupant; and it is in the latter case only, that the law adjudges the possession of one to the benefit...