Nat'l Mining Co. v. Powers

• Decision Date: 31 January 1879
• Citation: 3 Mont. 344
• Parties: NATIONAL MINING CO., appellant, v. POWERS, respondent.
• Court: Montana Supreme Court

3 Mont. 344

NATIONAL MINING CO., appellant,

v.POWERS, respondent.

Supreme Court of the Territory of Montana.

January Term, 1879.

Appeal from Third District, Lewis and Clarke County.

THIS action was tried by WADE, C. J., with a jury.

CHUMASERO & CHADWICK, for appellant.

While possession of property is prima facie evidence of title, such possession avails nothing if it appears that the title is in a party out of possession, unless the Statute of Limitations can be applied. In order to render the statute applicable, such possession must be adverse to the legal title. Cod. Sts. 515, § 4.

Adverse possession must be accompanied with the claim of the fee. Tyler on Eject. 851 et seq.; Humbert v. Trinity Church, 24 Wend. 586; McClellan v. Kellogg, 17 Ill. 498;Green v. Neal's Lessee, 6 Pet. 291;Ewing v. Burnet, 11 Id. 41;Harvey v. Tyler, 2 Wall. 328.

The fact of possession and its character are the tests. Tyler on Eject. 860, 870-872; Taggart v. Stansberry, 2 McLean, 543;Jackson v. Andrews, 7 Wend. 152;LaFrombois v. Jackson, 8 Cow. 609.

It must be hostile in its inception. Tyler on Eject. 874-877; Turney v. Chamberlin, 15 Ill. 271;Kirk v. Smith, 9 Wheat. 241;Brandt v. Ogden, 1 Johns. 156;Jackson v. Sharp, 9 Id. 163;Guy v. Moffat, 2 Bibb, 507.

A claim or title which cannot be set up by a person while in possession cannot be set up by one who comes into possession under him. Jackson v. Harden, 4 Johns. 202;Tompkins v. Snow, 63 Barb. 525.

A license given by the owner is a perfect answer to the claim of adverse possession set up by licensee or purchaser under him. Luce v. Carley, 24 Wend. 451;Babcock v. Utter, 1 Abb. 27; Tyler on Eject. 860, 879, 880.

Where party is in possession in privity with the owner, nothing short of open and explicit disavowal and disclaimer of owner's title, and assertion of title in himself, brought home to the owner will satisfy the law. Zeller's Lessee v. Eckert, 4 How. U. S. 289.

The court erred in excluding the testimony of respondent's grantor. Jackson v. Bard, 4 Johns. 230.

The proof showed that respondent's possession was not hostile in its inception, or accompanied with any claim to the fee. Respondent entered subject to appellant's title. Angell on Lim., §§ 441, 442; Jackson v. Davis, 5 Cow. 123;Jackson v. M'Leod, 12 Johns. 182.

E. W. TOOLE, for respondent.

No license was pleaded. It should have been set up in the replication if it could be made available to defeat the operation of the Statute of Limitations. Pomeroy on Rem. 712, 734.

Respondent does not avail herself of the possession of her grantor. She claims, by virtue of four years' adverse occupancy and never recognized the license of appellant. Angell on Lim., §§ 313, 314; Cod. Sts. 515, §§ 3, 4, 6, 7.

When did appellant's right of action accrue? Appellant never asserted any title against respondent until a demand for possession was made in April, 1876, and respondent never recognized appellant's title. Cod. Sts. 393, § 6; Angell on Lim., §§ 369, 380, 384, 395, 414, 439; Tiffany & B. on Trustees, 717; 1 Pars. on Cont. 509, 514; Addison on Torts, 395, 403; Whart. on Ev. 1337, 1338; Vansickle v. Haines, 7 Nev. 249.

Appellant's right of action accrued more than three years before the commencement of this action. Respondent's purchase of her grantor was a notice to appellant that she claimed adversely. 1 Washb. Real Prop. 537-539; Smith's Landl. & T. 217.

BLAKE, J.

The complaint alleges that the appellant on October 1, 1876, was seized in fee and the owner of and entitled to the possession of certain lots of land which were within the boundaries of the appellant's mill-site; and that the respondents entered into the possession of the premises and unlawfully withhold the possession thereof from the appellant. The answer denies these allegations and says that the respondents and their predecessors in interest have occupied and possessed the lots since 1865; and that they have occupied the same adversely to the appellant and all persons more than three years before the commencement of this action. The appellant's replication denied the averments of the answer.

Upon the trial the appellant introduced in evidence a patent from the United States to the appellant to said mill-site, which embraced the lots that were described in the complaint. The patent was dated October 27, 1869. In 1872 Mrs. Powers, one of the respondents, who was the real party in interest, purchased of Joseph Codling a dwelling-house, stable and chicken-house, which were on the land in controversy. The husband of Mrs. Powers was made a party defendant in this action and is the respondent also. Mrs. Powers made a peaceable entry upon the premises as soon as she paid therefor, and afterward in 1872 put a good and substantial fence on the land, and has improved and cultivated the same ever since and occupied and used the buildings thereon. The appellant is a foreign corporation which has a place of business in this Territory. During this period the agent and superintendent of the appellant knew that Mrs. Powers was living upon the premises and improving the same, and that she had built said fence, but never demanded any rent or asserted any title thereto until April, 1876. Upon the trial Mrs. Powers testified that she always claimed to be the owner of the premises and never heard that her title was disputed by any person until September or October, 1876. The agent and superintendent of the appellant testified that he never heard that either of the respondents was claiming said land until April, 1876.

The court below entered judgment on the verdict of the jury for the respondents.

Before we consider the errors which are complained of by the appellant, we will refer to the statutes, which are applicable to the case and are contained in the chapter relating to “Limitations.” Cod. Sts. 514.

“Any peaceable entry upon real estate shall be deemed sufficient and valid as a claim unless an action be commenced by the plaintiff for possession within one year from the making of such entry, or within three years from the time when the right to bring such action accrued.” § 3.

“In every action for the recovery of real property or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time prescribed by law, and the occupation of the premises by another shall be deemed to have been under such legal title, unless it appear that such premises shall have been held and possessed adversely to such legal title for three years before the commencement of the action.” § 4.

“When it shall appear that there has been an actual continued occupation of the premises under a claim of title, exclusive of any other right, but not founded upon any written instrument or judgment or decree, the premises so actually occupied, and no other, shall be deemed to have been held adversely.” § 6.

“For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, judgment or decree, land shall be deemed to have been possessed and occupied in the following cases only: First, when it has been enclosed by a good and substantial fence. Second. When it has been usually cultivated or improved.” § 7.

It appears from the transcript that Codling executed a bill of sale to Mrs. Powers of the dwelling-house, stable and chicken-house, but did not make a deed of the land in dispute. It does not appear that this instrument was delivered to either of the respondents, or accepted by them. The claim of Mrs. Powers to the tract of land which she inclosed by a fence is not founded upon any written instrument, judgment or decree.

The appellant contends that the court erred in giving certain instructions, and refusing to give one, which the appellants asked to be given to the jury. We think that all the questions which have been discussed by counsel are determined by the interpretation of the statutes supra. The court below followed these statutory provisions, and made no modifications thereof, and therefore committed no error. Upon the matters of law that are involved in this action, the reports are full of decisions, which are based upon the statutes regulating the subject. Mr. Tyler gives the following rule: “Whenever the statute declares what shall constitute the possession adverse, the question is settled by a reference to the statute, and the decisions of the courts which have been made under it. But, when the statute is silent upon the subject, the question is settled by general principles which have been sanctioned and established by the courts.” Tyler on Eject. 852.

Was the possession of Mrs. Powers adverse under the laws of this Territory? She made a peaceable entry upon the premises, inclosed the same by a fence in 1872, and annually cultivated and improved the same from 1872 until 1876. If her possession during this period was adverse to that of the appellant, she acquired a good title to the land which she actually occupied. The courts have held under similar statutes that adverse possession not only bars the remedy and extinguishes the right of the party having the true paper title, but vests a perfect title in the adverse holder. Leffingwell v. Warren, 2 Black, 599;Meeks v. Vassault, 3 Sawyer, 206; Arrington v. Liscom, 34 Cal. 365;Cannon v. Stockmon, 36 Id. 535;Figg v. Mayo, 39 Id. 262;Morris v. DeCelis, 51 Id. 55; Angell on Lim. (5th ed.), ch. 31.

In Ellicott v. Pearl, 10 Pet. 412, STORY, J., remarks in the opinion that “the erection of a fence is nothing more than an act presumptive of an intention to assert an ownership and possession over the property.” In Livingston v. Peru I. Co., 9 Wend. 511, SAVAGE, C. J., says: “Where the person claiming to hold by possession...