Fieldhouse v. Leisburg

• Decision Date: 11 January 1907
• Citation: 15 Wyo. 207,88 P. 214
• Parties: FIELDHOUSE v. LEISBURG
• Court: Wyoming Supreme Court

88 P. 214

15 Wyo. 207

FIELDHOUSE v. LEISBURG

Supreme Court of Wyoming

January 11, 1907

ERROR to the District Court, Carbon County, HON. DAVID H. CRAIG Judge.

Suit brought by Katie Leisburg against Sarah T. Fieldhouse involving the title and right to possession to a part of a town lot, which the plaintiff claimed by adverse possession. Verdict and judgment for plaintiff. Defendant brought error. The facts are stated in the opinion.

Reversed.

N. R Greenfield, for plaintiff in error.

The railroad company having conveyed the whole of lot 12 to the grantors of plaintiff in error, the fact that the company or its tenants continued in possession of part of the lot would not constitute a holding by adverse possession, but their possession would be regarded as either tenant or trustee for the plaintiff in error and her grantors. Nothing but an explicit disclaimer of such relation and a notorious assertion of right in themselves would be sufficient to change the character of such possession and render it adverse. (2 Tiffany Real Prop., 443; 1 Cyc., 1039, 1040.)

There must be privity of contract, blood or estate between consecutive occupants of land to establish continuity of adverse possession. (Simpson v. Downing, 23 Wend 316; Smith v. Reich, 80 Hun, 287; McIntyre v. Downing, 28 Ind. 347; Price v. Jackson, 91 N. C., 11; Dhein v. Buescher, 83 Wis. 316; Lucy v. R. Co., 92 Ala. 246; Sherrin v. Brackett, 36 Minn. 152; Allis v. Field, 89 Wis. 327; Graevan v. Dieves, 68 Wis. 317; Sheppard v. Wilmot, 79 Wis. 15; Doswell v. De La Lanza, 61 U.S. 29; San Francisco v. Fudde, 37 Cal. 349; R. Co. v. Philyaw, 88 Ala. 264; Armstrong v. Risteau, 5 Md., 256; Atkins v. Tomilson, 121 Mo. 487; Low v. Schaffer, 24 Pr., 239; Erick v. Church, 87 Tenn. 575; Jarrett v. Stevens, 36 W.Va. 445.)

Where title has ripened by adverse possession for the statutory period, it cannot be conveyed by a parol abandonment or relinquishment, but must be conveyed by deed or other like instrument. (Parham v. Dudman, 66 Ark. 26; School Dist. No. 4 v. Benson, 31 Me. 381; Sage v. Rudnick, 67 Minn. 362; Allen v. Mansfield, 82 Mo. 688; Byers v. Sheplar (Pa.), 7 A. 182; Austin v. Bailey, 37 Vt. 219; Miliken v. Kennedy, 87 Ga. 463; Furlong v. Cooney, 72 Cal. 322; Cuellar v. Dewitt, 5 Tex. Civ. App. 568; McLane v. Canales, 25 S.W. 29 (Tex.); Lamoreaux v. Creveling, 103 Mich. 501.) Plaintiff below must recover, if at all, upon the strength of her title, as in ejectment, and not upon the weakness of defendant's title.

If the fence was not built where it was for the purpose of marking the boundaries according to title, then neither party is bound by the existence of the fence as establishing either an agreed boundary line or adverse possession of the strip in controversy. (Khal v. Schmidt, 107 Iowa 550; Hunnewell v. Burchett, 152 Mo. 611; 1 Cyc., 1036, 1037.)

The term "adverse possession" is a generic term and the decisions are uniform in holding that "adverse possession" which will bar a legal title must be hostile and under a claim of title, actual, open, notorious, exclusive and continuous for the time necessary to create a bar of the statute of limitations. (1 Cyc., 981; 1 Words & Phrases, 227-235.) Exclusiveness of possession is a necessary element to the ripening of a title by adverse possession. (1 Ency. L., 822-834; 1 Cyc., 1024-1026; Ward v. Cochran, 150 U.S. 597.) The burden was upon plaintiff below to prove every essential element to constitute her alleged adverse title. (1 Cyc., 1143, 1144, 1151, 1154, and cases cited.) The evidence did not support the plaintiff's claim of title. (Maher v. Brown, 56 N.E. 189.)

McMicken & Blydenburgh, for defendant in error.

There is nothing in the facts as to the sale of the property by the railroad company to prevent the acquirement of title by adverse possession to the strip in controversy. Privity may exist in a succession of relationships created by deed or other act or by operation of law. There was such privity as the law requires between the defendant in error and her grantors, and continuity of possession to permit the adverse possession to ripen into a title. (Carey v. Curtis, 3 How., 247; 41 Iowa 516; 20 Minn. 431; 10 Ency. L., 156; 1 Cyc., 1002; 106 Wis. 499; 81 N.W. 1027; 82 N.W. 534; Barron v. Barron, 122 Ala. 194; Doe v. Adams, 121 Ala. 664; Riggs v. Fuller, 54 Ala. 141; Neale v. Lee, 19 D. C., 5; Faloon v. Simshauser, 130 Ill. 649; Hale v. Gladfelder, 52 Ill. 91; Beal v. Brooks, 23 Am. Dec., 401; Kilbourne v. Lockman, 8 Iowa 380; Hanson v. Johnson, 50 Am., 199; Frost v. Courtis, 172 Mass. 401; Cooper v. Ord, 60 Mo. 420; Murray v. Romine (Neb.), 82 N.W. 318; Lantry v. Wold, 40 Neb. 374; McNeely v. Langan, 22 Ohio St. 32; Stattnische v. Lamb, 18 Neb. 619; Haynes v. Boardman, 119 Mass. 414; Witt v. Ry. Co., 38 Minn. 122; Low v. Schaffer, 24 Ore. 239; Meyer v. Hope, 10 Wis. 123; Bradstreet v. Huntington, 5 Pet., 439; Heavener v. Morgan, 41 W.Va. 428.)

The great weight of authority is to the effect that the privity requisite to constitute adverse possession by tacking the possession of the original entryman to that of another may be effected by any conveyance, agreement or understanding, that has for its object a transfer of the possession and is accompanied by a transfer, in fact, and the right of one holding adversely may be transferred by parol. (Doe v. Adams, 121 Ala. 664; Smith v. Chapin, 31 Conn. 330; Kepley v. Scully, 185 Ill. 52; Vandall v. St. Martin, 42 Minn. 183; Davock v. Nealon, 58 N.J.L. 21; Collins v. Lynch, 157 Pa. St. 246; Steel Co. v. Budzisz, 106 Wis. 499.)

Where facts sufficient to show title by adverse possession have been adduced and it is sought to avoid the effect of the statute of limitations, the burden is upon the one who would do so. (Shropshire v. Shropshire, 7 Yerg., 164; Miller v. Bungardner, 109 N. C., 412; Miller v. Franley, 23 Ark. 735; Miner v. N. Y., 37 N. Y. Super. Ct., 171.) Injunction is a remedy open to an adverse holder to protect his possession from trespass. (Shock v. Falls City, 31 Neb. 599; Severson v. Lexington, 69 Mo. 157; Bowen v. Jones, 2 Nov. Scotia Dec., 509.)

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

The defendant in error commenced this action against the plaintiff in error, in the District Court of Carbon County, June 13, 1904, and in an amended petition filed June 21, 1904, alleged in substance: that the defendant in error was the owner of lot 11, in block 46, in the Union Pacific Railway Company's Fourth addition to the town of Rawlins, together with the improvements thereon, and for a long time had been in possession thereof; that said lot is forty feet in width, and one hundred and thirty-two feet in length, extending north and south; that defendant in error and her grantors for more than seventeen years prior to the commencement of this action have had open, notorious, hostile, adverse, exclusive, continuous and actual possession of a wedged-shaped strip of land ten feet in width at the north end and widening to fourteen and one-half feet on the south end and adjoining said lot 11, on its west side, said strip of land being a portion off the east side of what was designated in said plat of said block as lot 12; that said strip of land was fenced in with a portion of said lot 11 for more than seventeen years and had been occupied as above stated, and that the title to the same was in defendant in error and her grantors by right of prescription. That on June 13, 1904, the plaintiff in error unlawfully and maliciously entered upon said premises and commenced to build a fence along the line between said lots 11 and 12. The petition contains other allegations, but the foregoing are sufficient to present the matters in controversy. The prayer was for an injunction and damages. The plaintiff in error answered admitting that defendant in error was the owner of said lot 11, and denying the other allegations of the petition. The case was tried to a jury, resulting in a verdict in favor of the defendant in error and awarding damages in the sum of $ 30. A motion for a new trial was denied by the court and judgment entered on the verdict against the plaintiff in error for said damages and costs, and enjoining plaintiff in error from entering upon the premises in dispute. From this judgment she brings error, and assigns as error the denying of the motion for a new trial, among the grounds for which were, that the court erred in refusing to instruct the jury at the close of plaintiff's evidence to return a verdict for the defendant for the reason that the evidence was not sufficient to sustain a verdict in favor of the plaintiff; and also that the verdict was not sustained by the evidence, and was contrary to law.

The defendant in error claims this strip of land, which is a part of lot 12, by prescription; and the real issue in the case is, whether or not that claim is sustained by the evidence. This renders it necessary for us to state briefly the substance of the evidence bearing upon that question.

It appears that the land included within the plat of this addition was patented by the United States to the Union Pacific Railroad Company February 24, 1877, and was platted as such addition by the railroad company April 30, 1886, the plat being filed in the office of the County Clerk of Carbon County May 7, 1886. The lots front north, and lot 12 adjoins lot 11 on the west.

Mrs. N E. Price testified that she and her husband lived on what is known as lot 11, block 46, from 1880 for four or five years and built a small log house on the lot: "When we were there the lots were not sold to people. It was Union Pacific land. We had no title to the ground." M. B. Pendleton testified, that he bought the Price property in 1884 and...