Pratt v. Ard

• Citation: 63 Kan. 182,65 P. 255
• Decision Date: 08 June 1901
• Docket Number: 12,326
• Parties: C. H. PRATT v. N. L. ARD
• Court: Kansas Supreme Court

65 P. 255

63 Kan. 182

C. H. PRATT v. N. L. ARD

No. 12,326

Supreme Court of Kansas

June 8, 1901

Decided January, 1901.

Error from Allen district court; L. STILLWELL, judge.

STATEMENT.

THIS is an action in ejectment, brought on November 27, 1894, by the plaintiff in error, to recover from the defendant in error the east half of the southeast quarter of section 2, in township 26, range 20, in Allen county, Kansas. Plaintiff claimed under a patent issued to the Missouri, Kansas &amp Texas Railway Company, dated November 3, 1873. The defendant claimed under the fifteen-year statute of limitation. In 1866 the defendant took and claimed as a government homestead the west half of this southeast quarter and the north half of the northeast quarter of section 11, while his brother made a like claim to the south half of the northeast quarter of section 2. They each plowed out a hedgerow along the outer lines of their homestead claims, and defendant made other improvements on the west eighty of the southeast quarter and proceeded to occupy the same under the homestead laws. In 1869 defendant staked off the land in controversy by putting stakes at the corners and plowed for a hedgerow along its east line, intending thereby to mark its boundaries for the purpose of taking it as a timber claim. He, however proceeded no further in accordance with the acts of congress relative to such claims. He plowed and cultivated this hedgerow from that time until about the year 1875, when there was a county road laid out along this section line. After that he plowed a few furrows along the east line next to the road, for the purpose of a fire-guard. About 1873 he built a hog-pen, corral and corn-crib on the southwest corner of the eighty, near his house, which was located on the southeast corner of his homestead eighty. These buildings were not of a very substantial character, and about 1878 or 1879 they were removed, and the land where they had been located, to the extent of about one acre, was cultivated from that on in a truck or garden patch. In the spring of 1890, the defendant enclosed the entire eighty with a wire fence and broke out some thirty or forty acres of it. Up to this time the land had been unbroken prairie, and the defendant had used it for pasture and had cut and put up hay thereon. On occasions he would sell portions of the grass grown thereon to his neighbors. This eighty, in connection with the other two, was known generally in the neighborhood as "Ard's claim." Defendant never paid any taxes on the land; they were paid by the plaintiff or his grantor.

In 1889 a brother of the defendant, desiring to purchase the land in controversy, went to see the plaintiff, the defendant accompanying him. The brother, in the presence and hearing of the defendant, made a bargain for the purchase of the land defendant making no objections thereto. This bargain however, was never carried out, and the plaintiff did not part with the title to the land. The evidence is that the brother had, before going to see the plaintiff, made arrangements with defendant to purchase his claim on the land provided he bought the title from the plaintiff.

Upon these facts the trial court, without a jury, found for the defendant, and adjudged that his possession had been of such character as to give him title under the fifteen-year statute of limitations.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TITLE AND OWNERSHIP--Prescription. The cases of Anderson v. Burnham, 52 Kan. 454, 34 P. 1056, and Guinn v. Spillman, 52 Kan. 496, 35 P. 13, followed.

2. TITLE AND OWNERSHIP--The Extent of Actual Occupancy of the Premises. The actual occupancy of a small portion of an entire tract of land, which entire tract has been marked by locating the corners and plowing around the outer lines, must be deemed to be an occupation of the whole premises so marked, for the purpose of starting and continuing the running of the statute of limitations. Such actual occupancy is not limited in its operation for that purpose to the portion thus occupied.

T. N. Sedgwick, for plaintiff in error.

Ewing & Savage, for defendant in error.

CUNNINGHAM, J. JOHNSTON, GREENE, ELLIS, JJ., concurring.

OPINION

CUNNINGHAM, J.:

We are compelled to affirm the judgment of the court below on the authority of Anderson v. Burnham, 52 Kan. 454, 34 P 1056, and Guinn v. Spillman, 52 id. 496, 35 P. 13. In the former case this court held that "possession of land by an adverse occupant for more than fifteen years, which is actual, notorious, continuous, and exclusive, will give title thereto, although such possession is entirely destitute of color of...