Murphy v. Doyle

• Decision Date: 14 June 1887
• Citation: 33 N.W. 220,37 Minn. 113
• Parties: MURPHY v DOYLE.
• Court: Minnesota Supreme Court

37 Minn. 113

33 N.W. 220

MURPHYvDOYLE.

Supreme Court of Minnesota.

June 14, 1887.

(Syllabus by the Court.)

To constitute adverse possession, such as will work a disseizin of the lawful owner, there must be actual and visible occupancy of the premises; but what will constitute such occupancy will depend somewhat upon the nature and situation of the property, and the uses to which it can be applied.¹

Where the occupant entered into possession under a claim of title, founding such claim upon some written instrument as being a conveyance of the premises, and has been in the continuous occupancy of some part of the land included in such conveyance for 20 years, he will be deemed to have been in the adverse possession of the whole of such premises if not in the adverse possession of any one else, provided they consist of a single tract of a proper size to be managed and used in one body according to the usual manner of business of the country.²

As to what is color of title, see Armijo v. Armijo, (N. M.) 13 Pac. Rep. 92;Swift v. Mulkey, (Or.) 12 Pac. Rep. 76, and note. See, also, Word v. Box, (Tex.) 3 S. W. Rep. 93.

The deed under which the occupant entered, although void on its face, is admissible in evidence to show the nature and extent of the claim of the party who entered under it. Payment of taxes, although not constituting possession, is competent evidence of the fact that the party claimed title.

Appeal from district court, Le Sueur county,

Baxter, Townley & Gale, for Murphy, appellant.

Cadwell & Parker, for Doyle, respondent.

MITCHELL, J.

This was an action of ejectment. The defense was the disseizin of plaintiff, and those under whom he claims, by the adverse possession of defendant and his grantor for more than 20 years. It conclusively appeared from the evidence that in March, 1864, Dennis Doyle purchased the premises for taxes, and obtained from the county auditor a “tax certificate,” which, in August, 1864, he returned and obtained a tax deed purporting to be executed pursuant to chapter 4, Laws 1862, and to convey by sufficient description the whole of the premises in question, which is an 80-acre tract, This deed, however, was ineffectual to convey title, because it did not recite the existence of all the facts necessary to authorize the auditor to make a sale. It was not recorded until July, 1874. The land was vacant and wholly unimproved, and was all heavy timber except about eight acres of marsh meadow.

Claiming title to the whole tract under this tax title, and with the intention of holding it as his own, Doyle entered upon the premises in April or May, 1864, and cleared and fenced a few acres, and planted it with a crop. During the following winter he cleared four or five acres more, which he also inclosed with a fence, and planted with a crop in the spring of 1865. Each year thereafter he cleared, grubbed, and fenced some additional land, and put it in crop until he had in all between 30 and 40 acres inclosed and under cultivation. The fences were made out of rails cut on the premises. Every spring, including those of 1864 and 1865, he made sugar on the land, tapping the trees, extending over some eight or ten acres of the uncleared and uninclosed part of the premises. He also, in 1864 and 1865, and each succeeding year, cut hay on the marsh meadow, which he drained at considerable expense, but never inclosed with a fence. He also paid taxes on the entire 80 every year since he entered upon it, in 1864. He never erected any buildings or resided upon the premises, his residence being some 80 rods distant. The uncleared portion of the land was never inclosed. This occupancy of Dennis Doyle continued until April, 1865, when he conveyed to defendant, who immediately entered and has continued to occupy and use the premises in the same manner as his grantor. During all this time no one else was in the occupancy of any part of the land, or disputed Doyle's title, or claimed possession, until the commencement of this action, October 3, 1885.

The question is whether this state of facts constituted adverse possession by the Doyles, for 20 years, of the entire 80 acres, according to defendant's contention, or only so much as was actually improved and inclosed in 1864 and 1865, as contended by plaintiff. As to what will constitute adverse possession such as will work a disseizin of the true owner is a subject which has afforded a wide field for judicial discussion and decision. All the authorities agree that the possession must be actual, visible, and exclusive; but as to what will constitute such a possession, or as to what shall be deemed the extent of it under a given state of facts, there has been some diversity of views. The doctrine of the supreme court of the United States is that to constitute adverse possession there need not be a fence or a building; that it is sufficient if visible and notorious acts of ownership have been exercised over the premises for the time limited by statute. Ewing v. Burnet, 11 Pet. 53. It is difficult to lay down a precise rule applicable to all cases, as much must depend upon the nature and situation of the property, and the uses to which it can be applied. For example, in the case of a farm, if the possession is open and notorious, comporting with the ordinary management of farms, it is not necessary that the whole farm be either improved or inclosed, at least where the unimproved part, as woodland, is subservient to and connected with that which is improved, and, for the same reason, the rule requiring actual and visible occupancy will be more strictly construed in an old and populous country, where land is usually improved and inclosed, than in a new country recently settled, in which the land is only partially improved. Again, where the occupant enters under color of title through some deed or written instrument purporting to be a conveyance, he stands in a different position from a mere naked disseizor. He is presumed to have intended his entry to be co-extensive with the description contained in his deed, although the actual improvements are only on a part of the tract. The general doctrine of the courts in the United States is that where the...