Norman v. Smedley

• Decision Date: 06 June 1961
• Docket Number: No. 39024,39024
• Citation: 363 P.2d 839,1961 OK 143
• Court: Oklahoma Supreme Court
• Parties: Joseph L. NORMAN and Alma W. Norman, Plaintiffs in Error, v. Arthur DeVallery SMEDLEY and Geraline Yvonne Smedley, Defendants in Error.

Page 839

363 P.2d 839

1961 OK 143

Joseph L. NORMAN and Alma W. Norman, Plaintiffs in Error, v. Arthur DeVallery SMEDLEY and Geraline Yvonne Smedley,

Defendants in Error.

No. 39024.

Supreme Court of Oklahoma.

June 6, 1961.

Rehearing Denied Aug. 1, 1961.

Syllabus by the Court

1. The party relying on a title by adverse possession has the burden of proving all the facts necessary to establish such a title. Adverse possession is to be taken strictly, and every presumption is in favor of a possession in subordination to the rightful owner. Title by adverse possession, therefore, must be established by clear and positive proof. It cannot be made out by inference. All of its constitutent elements must be established. Thus it is necessary to prove an actual, open, notorious, exclusive, and hostile possession for the full statutory period.

2. An adverse occupant cannot tack the nonadverse occupancy of others onto his adverse occupancy in order to show adverse occupancy for the requisite prescriptive statutory period.

3. As a general rule, hostile adverse possession to an abandoned alley cannot be based solely on mowing the alley.

Appeal from the District Court of Oklahoma County; A. P. Van Meter, Judge.

Action by plaintiffs to eject defendants from one-half of an abandoned alley which adjoined plaintiffs' property, and to quiet plaintiffs' title to said one-half of the alley. From judgment on verdict in favor of defendants, plaintiffs appeal. Reversed with directions.

Charles N. Berry, J., and Mont F. Highley, Jr., Oklahoma City, for plaintiffs in error.

Caldwell & Warren, Oklahoma City, for defendants in error.

PER CURIAM.

The plaintiffs in error, Joseph L. Norman and Alma W. Norman, will be referred to herein as 'plaintiffs' and the defendants in error, Arthur DeVallery Smedley and Geraline Yvonne Smedley, will be referred to as 'defendants'.

In April, 1957, the guardian of Elizabeth Cox conveyed to plaintiffs the West 50 feet of Lot 1, Block 11, College Addition to Oklahoma City. The property is 108.6 feet deep. The street address of said property, which fronts on N.W. 13th Street, is 1708 N.W. 13th.

In 1950, James H. Ward and his wife conveyed all of Lots 9 and 10, Block 11, College Addition, except a triangular tract of land on the East side of Lot 9, which was 12.22 feet wide at the North end and 1.31 feet wide at the South end, to defendants. The referred-to tract was then owned by Oklahoma Railway Company, hereafter referred to as 'ORC'. The defendants' lots are 40 feet wide and 140 feet deep. The street address of the property, which also fronts on NW 13th Street, is 1716 N.W. 13th.

As platted, an alley extended North and South along the West side of Lot 1 and the East side of a triangular-shaped tract which is above referred to.

The alley was 3 feet wide. By an ordinance enacted in 1920, Oklahoma City vacated the alley subject to an easement on the part of ORC to use the alley for railway purposes.

In 1941, ORC removed its tracks and abandoned use of the alley for railway purposes. Defendants contend that said action on ORC's part did not constitute an abandonment of the alley because they thereafter asserted title to same. If ORC didn't abandon the alley in 1941, then it abandoned same upon making the following referred-to conveyances in 1955. The precise date that ORC abandoned the alley is, under the facts of this case, without significance. If Ward's occupancy of the alley was not hostile and adverse as to Mrs. Cox it was not hostile and adverse as to ORC.

In 1955, ORC by warranty deed conveyed the above referred-to triangular-shaped tract to defendants and by quit-claim deed also conveyed all if its right, title and interest in the alley to defendants.

In 1958, defendants claimed to own all of the alley upon which Lot 1 and the triangular tract abutted. Their claim was and is based upon adverse possession under an adverse claim of right by them and the Wards for a continuous period beginning in either 1941 or 1942.

An assertion of said claim on the part of defendants caused plaintiffs to institute the instant action in 1958 for the purpose of ejecting defendants from the East half of the alley (a strip of land 15 feet wide and 108.6 feet long), which abutted on Lot 1, and to quiet plaintiffs' title to said strip. Plaintiffs based their title to the strip upon the proposition that upon the alley being vacated, the strip attached to and became a part of their property. As heretofore pointed out, defendants' claim to the strip was based upon adverse possession thereof under claim of right (not color of title) for a continuous period in excess of 15 years.

The case was tried to a jury. The jury's verdict was for defendants and judgment was entered in accordance with the verdict. From order denying plaintiffs' motion for new trial, they perfected this appeal.

Defendants do not dispute the proposition that upon the vacation of a street or alley the land to the center thereof attaches to and becomes a part of adjoining lots and blocks. See Askins v. British-American Oil Producing Co., 201 Okl. 209, 203 P.2d 877. Assuming that said vacation did not serve to extinguish ORC's easement to use the alley for railway purposes, the easement was either lost in 1941 upon ORC's electing to no longer use the alley for railway purposes or by ORC's conveying same to defendants in 1955. It follows that in 1941 or 1955, the East half of the alley adjoining Lot 1 became a part of the West 50 feet of said lot which was then owned by plaintiffs' grantor, Mrs. Cox, and under the facts of this case defendants only acquired title if their claim of daverse possession for the prescriptive period of 15 years was established. The evidence bearing upon said claim can be summarized thus:

James H. Ward testified that immediately upon ORC's removing its rails and ties at a point along the East side of the triangular tract, he 'took one of (his) garden tools and went out to level the ground with the dirt or cinders that was between the ties'; that he began to mow the alleyway as did Mrs. Cox; that they used hand mowers; that after the lapse of about one year Mrs. Cox, who was then 85 years old, stated in substance that she was no longer physically able to mow the weeds and grass growing in the alley; that from that time (1942) until he sold Lots 9 and 10 in 1950 to defendants he alone mowed the alley; that during the first year he did 90% of the mowing; that after Mrs. Cox made known that she would do no further mowing he claimed the alley; that he subsequently had approximately 10 dump truck loads of dirt hauled in; that some of the dirt 'might have been put on the roadbed'; that the dirt was hauled for the purpose of filling a ditch along the West side of the abandoned railway right-of-way. On the last referred-to matter he testified as follows:

'Q. As I understand it, there was a ditch on the west side of the old tracks, and on the East side. Where did you put that four loads of dirt? A. I put it on the west side of the tracks.

'Q. In other words, you put it on the 15 feet that we are not concerned with in this law suit? A. Right.

'Q. O.K. Then, you testified that subsequently you got six loads of dirt? A. Uh huh.

'Q. Now, did that go on the east side or the west side? A. No, it went on the west side.

'Q. It all went on the west side? A. Uh huh; that's right.'

At the time Mr. Ward used the garden tool to level the abandoned trackway, he was not asserting an adverse claim to the alley. During said time Mrs. Cox was assisting in mowing the alley, and by said action was asserting possessory rights to the strip in controversy, which rights were not then questioned by Mr. Ward. It follows that Mr. Ward's claim to hostile adverse possession of the alley began in 1942 and is wholly dependent upon whether his actions in moving in dirt and mowing weeds and grass from 1942 to 1950 constituted such open, notorious and hostile possession as to apprise interested persons that he made adverse claim to the strip in controversy under a claim of right. It was stated in Nelson et al. v. Johnson et al., 189 Ky. 815, 226 S.W. 94, 97, that 'A hostile or adverse possession of lands by a claimant is holding them with the intention of taking and holding them as his, to the exclusion of all others. This intention, of course, can be gathered only from acts and declarations of the claimant while in possession and the circumstances attending his entry and occupation. * * *' In 1 Am.Jur. 'Adverse Possession', Sec. 130, p. 865, it is stated that 'He must intend to hold the land for himself, and that intention must be manifest by his acts.' We are of the opinion that Mr. Ward's actions cannot be considered as hostile nor adverse.

As to Mr. Ward's acts in moving in dirt, he testified as heretofore pointed out that dirt was placed in the ditch along the west half of the alley and not on the portion of the alley in dispute. It follows that said acts did not tend to show that Mr. Ward laid adverse claim to the East half of the alley. In Bankers Trust Co. of Muskegon v. Robinson et al., 280 Mich. 458, 273 N.W. 768, 770, this was said:

'* * * Where one is in the actual possession of a portion of a tract of land without color of title, the possession is not extended by construction beyond the boundaries of the occupied portion. Campau v. Campau, 44 Mich. 31, 5 N.W. 1062; McVannel v. Pure Oil Co., 262 Mich. 518, 247 N.W. 735; 2 C.J. pp. 230, 231.'

If Mr. Ward had testified that some of the dirt was used in leveling that portion of the roadbed which was on the strip in controversy, his acts in said particular would tend to show that he made adverse claim to the strip. He did not, however, so testify. He testified that some of the dirt 'might' have been placed on the roadbed and not that it was placed thereon. He failed to testify whether any part of the roadbed upon which he might have placed dirt was on the strip in controversy or the point on...