Parkersburg Indus. Co. v. Schultz
| Decision Date | 24 April 1897 |
| Citation | 27 S.E. 255,43 W.Va. 470 |
| Parties | PARKERSBURG INDUSTRIAL CO. v. SCHULTZ et al. |
| Court | West Virginia Supreme Court |
Submitted February 4, 1897-
Syllabus by the Court.
1. Mere naked possession of land without claim of right is no adverse possession, and, no matter how long continued, will not furnish a defense to an action or confer title.
2. One in adverse possession of land without paper title has adverse possession only to the extent of his inclosure or actual improvement.
3. Possession by inclosure, to be adverse, must be such as to be exclusive possession, a real and substantial inclosure, an actual occupancy, which is definite, positive, and notorious when that is the only defense against a legal title. Therefore a partial inclosure of land capable of total inclosure, leaving part of its boundary open, is not sufficient.
4. A party relying on adverse possession must show clearly all the requirements of the doctrine.
5. The statute of limitations confers a legal title, enabling one not only to defend but to maintain ejectment or other action on its strength.
6. To defeat an action of ejectment by an outstanding title in a stranger, the defendant must show it to be a present subsisting, operative legal title, on which the owner could recover if asserting it in an action. It is not for the plaintiff to disprove its validity.
7. Title vested under the statute of limitations may be forfeited for nonentry for taxation or lost by adversary possession under the statute of limitations.
8. Adverse possession is lost by break in its continuity, by abandonment, or other cause, before the bar of the statute is complete, and seisin is restored to the true owner. A subsequent entry is a new disseisin, and cannot be added to the former possession.
9. Instructions must not be obscure, or vague and indefinite, or put inconsistent legal propositions, or propositions which no evidence fairly presents, or be inconsistent with others in the case, or present a certain hypothesis and make the case turn wholly on it, disregarding another hypothesis fairly arising on the evidence.
10. Declarations of one in possession of land explanatory of such possession, as under what right or claim, are admissible to show his claim, but not to show title.
Error to circuit court, Wood county.
Ejectment by the Parkersburg Industrial Company against Otto Schultz and others.
From a judgment for defendants, plaintiff brings error. Reversed.
Merrick & Smith, for plaintiff in error.
S.D Turner and H. P. CAMDEN, for defendants in error.
This is an action of ejectment brought by the Parkersburg Industrial Company against Otto Schultz and others to recover six coterminous town lots, numbered from 7 to 12, inclusive, containing 126 poles in the aggregate, lying near the mouth of the Little Kanawha river, on the south side of it from Parkersburg. The plaintiff traced title from the state of Virginia under two patents,--one to James Neal, dated September 14, 1785, for 400 acres, and one to John Stokely, for 1,200 acres, dated May 9, 1804. In the line of this title was a deed from Stokely to J. B. Beckwith, dated November 2, 1844, for 225 acres and 97 poles. The defendants showed no paper title, but relied solely on adversary possession under some claim under Elijah Spencer, and an outstanding title, under a grant from King George III. to Daniel Richardson and others, dated December 1, 1773, for 28,400 acres of land.
We must now inquire into this defense of adversary possession. Where one man has actual possession of land of another, if he makes no claim to own it, he is merely an intruder, called commonly a "squatter," and, no matter how long he may continue there, the statute of limitations will confer no right upon him, because he makes no claim against the true owner and his possession is, therefore, not adversary. Creekmur v. Creekmur, 75 Va. 430; Nowlin v. Reynolds, 25 Grat. 141; Hudson v. Putney, 14 W.Va. 561, point 4; Hutch. Land Titles, § 408; Kincheloe v. Tracewells, 11 Grat. 588, point 7. If, however, he claims ownership in the land, though he have no writing giving color of title, the statute does run in his favor, and at the end of the period of limitation prescribed by it will give him title, but only to the extent of his inclosure or improvement. Core v. Faupel, 24 W.Va. 238, point 7; Jarrett v. Stevens, 36 W.Va. 445, 15 S.E. 177; Oney v. Clendennin, 28 W.Va. 34, point 4. If he have a writing, giving color of title, his possession goes to the extent of the boundaries specified in it where there is no actual adverse possession under the better title within it. Code 1891, c. 90, § 19; Oney v. Clendennin, 28 W.Va. 34. Possession under writing imports that it is under claim of title and adverse, and will go to its boundaries. Ketchum v. Spurlock, 34 W.Va. 597, 12 S.E. 832. Spencer set up some claim to this land as shown by his mere declarations. Declarations of one in possession, explanatory of his possession and making claim, are admissible evidence, while he is in possession, to show that he is in under claim of ownership, but not to show title. High v. Pancake, 42 W.Va. 602, 26 S.E. 536; 1 Greenl. Ev. § 109; Royall v. Lisle. 60 Am.Dec. 712.
Let us look at the character of possession in this case. There was no building, cultivation, or improvement upon this land. The only basis for adversary possession is an inclosure by a fence. Under the evidence the question presents itself whether this fence was such as the law contemplates to give adversary possession. Here we must first note that, as it defeats the true title, adversary possession must be taken strictly, and the facts to sustain it proven clearly. Irvine v. McRee, 42 Am.Dec. 468; Hale v. Glidden, 10 N.H. 402. The evidence shows that in 1843 or 1844 a fence, composed perhaps of slabs, inclosed two sides of these lots, but not the whole area. Certainly one side was left open. Our cases hold that adverse possession must be "exclusive"; that is, shut the adverse claimant out. In Jackson v. Shoonmaker, 2 Johns. 230, Chief Justice Kent said that a possession fence, by felling trees and lapping them one upon the other around the land, was "too loose" a mode of taking possession to be considered adverse possession. He said: "There must be a real and substantial inclosure, an actual occupancy, a possession pedis, which is definite, positive, and notorious, to constitute an adverse possession, when that is the only defense, to countervail a legal title." Same in Coburn v. Hollis, 3 Metc. (Mass.) 125. In Hale v. Glidden, 10 N.H. 397, it was held that an inclosure by a brush fence and cutting wood from a wood lot, where a person had no color of title, is insufficient; the possession must be actual, permanent, and exclusive, marked by definite boundaries. In Armstrong v. Risteau (Md.) 59 Am.Dec. 115, it was held that fences on three sides of an oblong or square piece of land are not such an inclosure as would constitute adverse possession where such inclosure is necessary. See Busw. Lim. § 247. Possession, to be adverse, must be actual, continued, visible, notorious, distinct, and hostile. It must be such that the owner may be presumed to have notice of it and its extent. It must be open, visible, and exclusive. Core v. Faupel, 24 W.Va. 238, point 5. It has been several times held that protection of the land by substantial inclosure sufficient to turn stock is necessary, and that it is not sufficient where it is insufficient to turn stock. Note to Plume v. Seward, 60 Am.Dec. 604. A poor fence around a part of this small area, leaving it open, with no building or cultivation, would not be distinct, hostile, possession, excluding the owner, giving him warning of adverse claim, but would rather indicate an abandonment of a once intended claim. Though from Spencer's declarations we may say he at one time set up a claim, yet he abandoned it, as he never completed this small inclosure. Other lots very close he kept inclosed, but let this go, evincing an abandonment.
Here comes in another point of weakness, forbidding us from considering this inclosure as conferring title. One of the indispensable elements of adversary possession is that it must be continuous for the whole period prescribed by the statute. It is indefinite when this possession began, but say 1843. As an inclosure it ended in 1853. The bulk of the evidence clearly shows this. One of Spencer's sons living just there, possessing peculiar means of information, said he did not "remember of the land in controversy being fenced after 1853; we let the fence go." Other evidence fixes 1853 as the latest date at which, if ever, it could be considered such a fence as the law requires. Certainly we have to say that after that date it was neglected, and in fact abandoned, going into utter dilapidation. Some of its rails did continue there of course, and were burnt by the troops in the Civil War, in 1861, but they were simply remnants of what had been for years a skeleton of its former self. Thus there was only 10 years of adversary possession, if any ever existed, and to confer title the then-existing law required 15 years. The present period of 10 years first began with the Virginia act of March 27, 1861. Hutch. Land Titles, § 443. To confer title by the statute of limitations, it is indispensable that the possession be unbroken and continuous for the period of the statute. Core v. Faupel, 24 W.Va. 239; Oney v. Clendennin, 28 W.Va. 34. Ever so short a break will destroy all the preceding holdings, and the possession must begin de novo. Hutch. Land Titles, § 378; Downing v. Mayes (Ill. Sup.) 38 N.E. 620. So, if there be a voluntary abandonment before the bar is complete, the possession amounts to nothing. Taylor's...
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