Hellard v. Hubbard
| Decision Date | 15 October 1914 |
| Parties | Hellard, etc. v. Hubbard, etc. |
| Court | Kentucky Court of Appeals |
Appeal from Jackson Circuit Court.
A. W. BAKER for appellants.
J. R. LLEWELLYN for appellees.
Hubbard is the claimant and occupant of about fifty-five acres of land. It is conceded that unless his adverse possession has ripened into a legal title, then the right of the Hellards should prevail.
The case was submitted to the court without the intervention of a jury, and his judgment was in favor of the Hubbards, who claimed it by adverse possession.
The possession under which the Hubbards claimed begins with Elihu Roberts in 1894. Roberts had lived on the land several years before this, but had abandoned it, and gone to Arkansas, where he lived three or four years. Roberts says he left his father to look after it, but his father lived several miles away, and no one resided upon, or was in the actual possession of the land, so that the possession really begins in 1894, when Roberts returned from Arkansas, and again settled on the place. Possession was held in succession by Roberts and his boys until November 24th, 1902, when the Roberts sold it to Elihu Angel. On September 11th, 1903, Angel sold it to Hubbard. That the Hubbards have had actual possession ever since their purchase in 1903, to February 9th, 1912, when this suit was instituted, is not disputed. The question here is, whether from the time Elihu Angel purchased it in November, 1902, until he sold it in September, 1903, the land was occupied, and, if not, whether this nine months' break was sufficient to defeat the Hubbards' claim of fifteen years continuous adverse possession.
The proof shows that there were two log cabins on the land, and a part of it cleared and under fence. How much of it was under fence does not appear. These buildings and fences were built before Angel purchased it. When Angel purchased in November, 1902, one of the Roberts boys was living on it, and, as the proof shows, continued to live on it two or three weeks. Angel never did occupy or live upon the land, but he says he rented it to "a fellow, Jake Tussey, and he went over there and fixed up the floor in the houses to move in, but he did not move in." It is apparent that no one occupied the houses or lived upon the land, or made any use whatever of it during these nine months, and no effort was made to get another tenant.
In Trotter v. Cassady, 3 A. K. Mar., 365, 13 Am. Dec., 183, this court held, in an action under the twenty year statute, that:
In Jones v. McCauley's Heirs, 2 Duv., 14, it was held:
"The law of limitation, being reasonable and founded on principle, does not allow the statute to run when there is no cause for action; and, therefore, to bar an ejectment by time, the adverse possession must have been, not only actual, but so continued for 20 years as to have furnished a cause of action every day during that whole period, and consequently, as conclusively and consistently adjudged, claim of title, however notorious, and occasional use under that claim, without actual possession, continued without intermission or interruption for 20 years, will not bar an adverse right of entry." To the same effect is Barr v. Potter, 57 S. W., 478, 22 Ky. Law Rep., 416; Hibbard v. Wilson, 32 S. W., 1086, 17 Ky. Law Rep., 930."
In the case of Ashcroft v. Courtney, 121 S. W., 626, the court said:
"The rule is that to acquire title by adverse possession, the possession must be such as to give a cause...
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