Holtzman v. Douglas

• Decision Date: 29 November 1897
• Docket Number: No. 80,80
• Citation: 168 U.S. 278,18 S.Ct. 65,42 L.Ed. 466
• Parties: HOLTZMAN v. DOUGLAS et al
• Court: U.S. Supreme Court

168 U.S. 278

18 S.Ct. 65

42 L.Ed. 466

HOLTZMAN

v DOUGLAS et al.

No. 80.

November 29, 1897.

Arthur A. Birney, for plaintiff in error.

N. E. Davis, James S. Edwards, and Job Barnard, for defendants in error.

Mr. Justice PECKHAM delivered the opinion of the court.

This is an action of ejectment, brought to recover the possession of a lot in the city of Washington, designated as 'Lot No. 8 in square No. 941.' The defendants set up adverse possession as defense. Upon the trial before a jury a verdict was rendered in favor of the defendants, upon which judgment was entered, and an appeal taken to the court of appeals of the District of Columbia, where the judgment was in all things affirmed (5 App. D. C. 397), and the plaintiff has brought the record here for review.

It appeared on the trial that the record title to the lot had been, at the time of his death, in one David A. Hall, who died December 24, 1870, and the heirs at law of Hall, by divers conveyances, conveyed this lot to the plaintiff in fee. The plaintiff proved also that the defendants, at the commencement of this action, were in possession of the premises through one Richard Rothwell, their tenant, and that they claimed to own the same as heirs at law of William Douglas, who died in September, 1865. The defendants, on their part, proved a deed of conveyance to William Douglas of the lot in question from the corporation of the city of Washington, the deed reciting a sale of the property for unpaid taxes assessed on the land in the name of David A. Hall, the deed being dated July 6, 1865, and recorded July 12, 1865, in the proper office. The deed was admitted in evidence to show color of title in the defendants.

The facts upon which the defense of adverse possession arises have been so well summarized in the opinion of the court of appeals, which was delivered by Mr. Justice Morris, that we take his statement thereof, as follows:

'It was testified on behalf of the defendants that, some time in the latter part of the same year, 1865, one Richard Rothwell, a stonecutter and builder, who owned and occupied an adjoining lot, deposited upon the rear of the lot in controversy some pontoons which he had purchased from the United States, and which he stored here until he could make some disposition of them; and that he afterwards used a part of this lot for the deposit of stone and marble which he used in his business. He testified that he had deposited three of four wagon loads of marble there as early as the year 1867, and that some of the pontoons remained on the lot four or five years. He also testified that, in the year 1870 he commenced to deposit stone there in large quantities; and that in 1872 he erected a small shed on the lot in which to carry on his work, and which he replaced with a larger structure in or about the year 1882.

'Some time in the year 1867, Mrs. Douglas, the widow of William Douglas, apparently acting on behalf of his estate, or of the estate of their children, had an interview with Rothwell, and came to an understanding with him, with reference to his continued occupancy of the lot, in pursuance of which understanding he agreed to pay as rent to her annually therefor a sum of money equal to the amount of taxes that should annually be assessed upon it, and he did so pay rent to her until her death, in 1887; and after her death he paid the rent to her daughter, a Mrs. Wirt, down to about the time of the institution of this suit. During all this time—that is, from 1867 to 1889—Rothwell continued to occupy the property, and paid rent therefor to the Douglases, and the latter paid the taxes annually for all the years from 1868 to 1893, both inclusive, except for the year 1870, during which there was an interregnum in consequence of the establishment about that time of a territorial form of government in the District of Columbia, the assessment of the property having been in the name of William Douglas since the year 1868, inclusive.

'By a stipulation filed in the cause since the argument, in order to supplement some omission in the printed record, it appears that at the death of William Douglas, in 1865, four of his children were adults and two minors; and that Mrs. Douglas, the widow, was appointed guardian to the two latter, and filed in her guardianship accounts for several years the annual receipts for taxes on this lot, paid by her, and was allowed credit for them by the court. It therefore appears that, with reference to this lot, she acted, not for herself, or on her own individual account, but on behalf of the estate that was then in her children.

'There was a proposition on the part of Mrs. Douglas, apparently about the time of Rothwell's attornment to her, to inclose the lot with a fence. But to this Rothwell objected, on the ground that it would interfere with his use of it, and with free access to it of his horses and wagons, and the project was abandoned, so that the lot was never actually inclosed, and the only evidence of occupation consisted in such use of the property as has been indicated. The streets had not been actually laid out in that neighborhood otherwise than by their delineation on the map of the city, and the whole region was an open field, with no definite landmarks to indicate to the casual observer the actual location of this lot.'

This action was commenced on the 31st of May, 1889, and, as stated in the brief of the counsel for the plaintiff, the vital question for the jury was, were the defendants in adverse possession prior to May 31, 1869? The evidence is uncontradicted that from a period as early as 1867 the defendants, through their tenant, Rothwell, were in possession of the premises, and such possession was continued up to the commencement of this action; but it is claimed that, because Rothwell had entered upon the land in 1865 without claiming to own the same, or to be entitled to possession, and had deposited the pontoons and marble mentioned in the foregoing statement of facts, he thereby became a tenant of the plaintiff's predecessors in title, and that he could not change the character of his possession, as being in subordination to them, by any agreement between himself and Mrs. Douglas, without giving notice to them that such an agreement had been made.

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