Morrison v. Linn

Decision Date12 March 1915
Docket Number3486.
Citation147 P. 166,50 Mont. 396
CourtMontana Supreme Court

Appeal from District Court, Custer County; C. C. Hurley, Judge.

Action by R. C. Morrison against Samuel H. Linn, Gertrude Coleman and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded with directions.

Frank Hunter, of Miles City, for appellant.

Farr & Herrick, of Miles City, for respondents.


In 1912 this action was brought to have determined the conflicting claims to lot 5, in section 28, township 8 north, range 47 east, in Custer county, Mont. In his complaint plaintiff alleges that for more than 10 years prior to the commencement of the action he was in the actual, open, notorious continuous, exclusive, and adverse possession of the land under claim of title thereto. The answering defendant Samuel H. Linn asserts that he and his codefendant Gertrude Coleman hold the legal title to the land; otherwise the answer is a general denial of the allegations of the complaint. The trial court found that in 1900 plaintiff took possession of the land and erected certain fences, which, with natural barriers, constituted a substantial inclosure of the tract that since the date of his entry, plaintiff has been in "continuous, open, notorious, and actual, peaceable, and exclusive possession of lot 5"; that at the time he went into possession he knew the land was owned by some one else; that he never paid any taxes upon the property, but all taxes were paid by defendent Linn. The court's findings further recite:

"There is no evidence introduced showing that at the time the plaintiff took possession of said lot 5 he had any claim of title, or made any pretense of having title, to said lot. Under these circumstances, the court is unable to conceive of any theory upon which the plaintiff held possession of said premises under a claim of title exclusive of any other right as provided in section 6438 of the Revised Codes."

In conclusion, the court determined that:

"Plaintiff has acquired no right, interest, or title in or to the said lot 5 adverse to, or superior to, the title of the said defendant Samuel H. Linn."

From a judgment entered in favor of defendant Linn, and from an order denying a motion for a new trial, plaintiff appealed.

In this court the respondent contends that the finding that plaintiff did not hold possession of the land under a claim of title is sustained by the evidence. For the purposes of these appeals, the case might have been submitted upon an agreed statement of facts, for there is not any conflict in the testimony upon any matter material to a determination of the controversy. The evidence is undisputed that during the entire time of his occupancy of the land, plaintiff claimed it as his own as against every one else, that he inclosed it and used it for the only purpose for which it was adapted; that he exercised every act of ownership and exclusive control of the property, and that these facts were generally known to the people living in the vicinity. He did not pay the taxes upon the land, and his original entry was a trespass. He did not have or claim to have any paper title to the land.

Some incidental questions may be disposed of summarily: One may by adverse possession of land, for the period of the statute of limitations, acquire title thereto. National Min. Co. v. Powers, 3 Mont. 344. "Payment of taxes is not an element of adverse possession, unless made so by statutory requirement." 1 Cyc. 1106. In the absence of any statute upon the subject in this state, the general rule just stated prevails.

The controversy here is waged about the meaning of "claim of title," as used in section 6438, Revised Codes, and the possibility of a trespasser initiating a right which may ripen into a title by adverse possession. The authorities are quite uniform in holding that, in order to prevail over the record title, it is indispensable that the adverse claimant maintain his possession throughout the entire period of the statute of limitations, under either "color of title" or "claim of title" in himself; otherwise the law will presume his possession to have been subservient to the legal title. This rule prevails in this state by virtue of positive statutes. Rev. Codes, §§ 6436-6438.

Much needless confusion has been introduced into the books by the ill-advised use of "color of title" and "claim of title" as synonymous. Indeed, the confusion is apparent in our own Codes. Section 6436 considers a "claim of title" founded upon a written instrument, or a judgment or decree of court. Since the section is treating of title by adverse possession, and not of muniments which convey or confirm valid title, it is clear that our legislators fell into the common error and misused the phrase; for one who holds land under a written instrument, a statute or a judgment or decree of court which appears to convey or confirm title, but does not do so in fact, holds under "color of title"; that is to say, he holds by virtue of something which gives him a colorable title only. This is the meaning of the phrase as used by discriminating courts and text-writers. 1 Rul. Case Law, 707.

In Beverly v. Burke, 9 Ga. 440, 54 Am. Dec. 351, "color of title" is defined as follows:

"What is meant by color of title? It may be defined to be a writing, upon its face professing to pass title, but which does not do it, either from a want of title in the person making it, or from the defective conveyance that is used--a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law."

In Hall v. Law, 102 U.S. 461, 26 L.Ed. 217, it is said:

"Whenever an

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