Rennert v. Shirk

• Decision Date: 29 November 1904
• Docket Number: No. 20,426.,20,426.
• Citation: 163 Ind. 542,72 N.E. 546
• Parties: RENNERT v. SHIRK et al.
• Court: Indiana Supreme Court

163 Ind. 542

72 N.E. 546

RENNERT

v.SHIRK et al.

No. 20,426.

Supreme Court of Indiana.

Nov. 29, 1904.

Appeal from Circuit Court, Miami County; J. N. Tillett, Judge.

Action by Mary H. Rennert against Milton Shirk and others. From an adverse judgment, complainant appeals. Transferred from the Appellate Court under section 1337u, Burns' Ann. St. 1901. Affirmed.

John T. Armitage and W. E. Mowbray, for appellant. Mitchell, McClintic & Antrim, for appellees.

MONKS, J.

Appellant brought this action against appellees to quiet the title to lot No. 82 in the original plat of the city of Peru. Appellees Milton and Elbert W. Shirk and Alice S. Edwards filed a cross-complaint to quiet title in themselves to a part of said lot 82. Appellant's demurrer for want of facts to said cross-complaint was overruled. A trial of said cause resulted in a finding, and, over a motion for a new trial, a judgment, in favor of the cross-complainants, quieting their title to the part of lot 82 described therein.

The errors assigned and not waived call in question the action of the court in overruling appellant's demurrer to the cross-complaint and appellant's motion for a new trial. It is alleged in the cross-complaint that cross-complainants are the owners in fee simple of the following real estate in Miami county, in the state of Indiana (describing the part of said lot 82 in controversy); “that said cross-defendant, Mary H. Rennert, is claiming some right, title, or interest in and to said real estate adverse to the interest of said cross-complainants, the nature of which is to them unknown, but which is unfounded and without right, and casts a cloud upon their title thereto. Cross-complainants further say that for more than twenty (20) years, to wit, for sixty (60) years, last part, they and their immediate and remote grantors have been in open, notorious, continuous, and adverse possession of said real estate as against cross-defendant, Mary H. Rennert, and all the world, claiming title thereto.”

Appellant insists that said cross-complaint is insufficient “because it is not alleged in terms, or the equivalent thereof, that the possession of the cross-complainants and those under whom they claim title was actual and exclusive; that the allegation that the possession was adverse is a mere conclusion, and not the statement of a fact.” In an action to quiet title, under our statutes, the pleading, to be sufficient, must allege that the pleader is the owner of the real estate described therein, or a certain interest therein, and that the defendant in the action or cross-action claims an interest therein, and that such claim is adverse to the title asserted in said pleading, or that the same is unfounded and a cloud upon such title. Weaver v. Apple, 147 Ind. 304, 305, 46 N. E. 642;Rausch v. Trustees, 107 Ind. 1-3, 8 N. E. 25, and cases cited; Johnson v. Taylor, 106 Ind. 89, 90-92, 5 N. E. 732, and cases cited; Mitchell v. Bain, 142 Ind. 604, 606, 607, 42 N. E. 230;Brown v. Cox, 158 Ind. 364-366, 63 N. E. 568, and cases cited; Seymour Water Co. v. City of Seymour (Ind. Sup.) 70 N. E. 514-516. All these essential facts were alleged in the cross-complaint, and it is therefore sufficient.

It is not necessary to decide whether or not the allegations in said cross-complaint concerning the possession are sufficient to give title by prescription, for the reason that said pleading is good without considering said allegations; and, even if they are not sufficient to give title, they do not in any way overcome or destroy the other allegations thereof.

The motion for a new trial assigned two causes therefor: (1) The insufficiency of the evidence to sustain the finding; (2) that the finding is contrary to law.

The finding in favor of the cross-complainants and against appellant was made upon the ground that said cross-complainants held title to the real estate in controversy by adverse possession. To be adverse, possession must be actual, open, and notorious, exclusive, continuous, and under a claim of right; that is, an intention to claim adversely. Worthley v. Burbanks, 146 Ind. 534, 539, 45 N. E. 779. Appellant insists that appellees failed to show title by adverse possession, because there was no evidence that their possession and the possession of those under whom they hold and claim the part of lot 82 in controversy was “under a claim of right.” We may therefore assume that the evidence established all the other essential elements of title by prescription, and proceed to consider the question mentioned.

Evidence was given in the cause showing that lots 81 and 82 in the original plat of the city of Peru are adjacent to each other, lot 82 being west of lot 81. Prior to 1842 the owner of lot 81 built a frame dwelling house on the west side of said lot, which extended 26 inches over and upon said lot 82, where it remained until the time of the trial of this cause in 1903. The part of said lot 82 occupied by said dwelling house was a strip 26 inches wide, commencing at the north or front end of said lot 82 on the east side thereof, and extending back from the street south 38 feet-the real estate claimed in the cross-complaint. The owners of said lot 81, either in person or by their tenants, have lived in the said dwelling house, and had actual, exclusive, and continuous possession of the real estate in controversy, from the time said house was built, for a period of more than 40 years, and have during that period, and until the time of the commencement of this action in 1902, repaired said property, rented it, collected the rents, offered to sell and convey, and have sold and conveyed the same, by the description of lot 81, and exercised acts of ownership in regard to the same, disregarding the claims of others, asking permission from no one, and using the property as a part of said lot 81 and as their own. This sufficiently shows that the possession of the part of lot 82 in controversy was under a claim of right.

It is not necessary that appellees and those through whom they claim, or any of them, ever made oral declaration of such “claim of right,” It may be inferred from the manner of the occupancy. The same, as well as all the other essential elements of adverse possession, may be shown by positive acts of ownership inconsistent with the title and possession of the true owner of the real estate in controversy, such as erecting, repairing, and occupying buildings on said real estate, leasing the same and collecting the rents, selling and conveying, and offering to sell and convey, said property as improved. 1 Am. & Eng. Ency. of Law (2d Ed.) 888-890; 1 Cyc. Law & Proc. 998-1000; 2 Pingrey on Real Property, §§ 1163, 1164; Tiedeman on Real Prop. (2d Ed.) §§ 697, 699, pp. 661, 662; 3 Washburn on Real Prop. (6th Ed.) §§ 1966, 1976; 3 Kerr on Real Prop. § 2273, pp. 2295-2297; 2 Tiffany's Mod. Law of Real Prop. § 441; 7 Ballard's Law of Real Prop. pp. 18-20; 8 Ballard's Law of Real Prop. § 27, pp. 23, 24; Wood on Limitations (3d Ed.) p. 577; Angell on Limitations (6th Ed.) 400, 401; Sedgwick & Wait on Trial of Title to Land (2d Ed.) § 758; Watson v. Gregg, 10 Watts (Pa.) 289, 295, 36 Am. Dec. 176;Rung v. Shoneberger, 2 Watts (Pa.) 23, 27, 26 Am. Dec. 95, 101; French v. Pearce, 8 Conn. 439, 21 Am. Dec. 680; Bryan v. Atwater, 5 Day (Conn.) 181, 5 Am. Dec. 136; Kennebec Purchase v. Laboree, 2 Greenl. (Me.) 275, 11 Am. Dec. 79; Allen v. Allen, 58 Wis. 202, 206-209, 16 N. W. 610;Meyer v. Hope, 101 Wis. 123, 125-130, 77 N. W. 720;Bishop v. Bleyer, 105 Wis. 330, 332, 333, 81 N. W. 413;Pitman v. Hill, 117 Wis. 318, 322, 323, 94 N. W. 40;Gilman v. Brown, 115 Wis. 1, 5, 6, 91 N. W. 227;Bennett v. Clemence, 6 Allen (Mass.) 10, 18, 19; Stedman v. Smith, 8 El. & Bl. 1; Village of Glencoe v. Wadsworth, 48 Minn. 402, 51 N. W. 377;Dean v. Goddard, 55 Minn. 290, 297-299, 56 N. W. 1060;Rowland v. Williams, 23 Or. 515, 521, 522, 32 Pac. 402;Willamette, etc., Co. v. Hendrix, 28 Or. 485, 497, 42 Pac. 514, 52 Am. St. Rep. 800; Liddon v. Hodnett, 22 Fla. 442, 466; Grim v. Murphy, 110 Ill. 271;Dyer v. Eldridge, 136 Ind. 654, 658-660, 36 N. E. 522, and cases cited; Brown v. Anderson, 90 Ind. 93, 98, 99;Nowlin v. Whipple, 120 Ind. 596, 598, 22 N. E. 669, 6 L. R. A. 159, and cases cited; Mitchell v. Bain, 142 Ind. 604, 607, 608, 42 N. E. 230, and cases cited; Pittsburgh, etc., Ry. Co. v. Stickley, 155 Ind. 312, 58 N. E. 192;Cutsinger v. Ballard, 115 Ind. 93, 97, 17 N. E. 206, and cases cited.

It is said in Dyer v. Eldridge, supra (page 659, 136 Ind., page 524, 36 N. E.): “Exercising that dominion over the thing used, taking that use and profit it is capable of yielding in its present condition, such acts being so repeated as to show that they are done in the character of owner, and not of an occasional trespasser, constitute adverse possession. Baum v. Currituck, etc., Club, 96 N. C. 310, 2 S. E. 673, 675, 676. *** The correct doctrine is declared in La Frombois v. Jackson, 8 Cow. 588, 603, 18 Am. Dec. 463, as follows: ‘The actual possession and improvement of the premises as owners are accustomed to possess and improve their estate, without any payment of rent, recognition of a title in another, or disavowal of a title in himself, will, in the absence of all other evidence, be sufficient to raise a presumption of his entry and holding as absolute owner, and, unless rebutted by other evidence, will establish the fact of claim of title.’ The court further said: ‘Every possession, then, is adverse, and entitled to the peaceful and benignant operation and protecting safeguard of the statute, which is not in subservience to the title of another, either by a direct acknowledgment of some kind, or an open or tacit disavowal of right on the part of the occupant; and it is in the latter case only that the law adjudges the possession of one to the benefit of another.”’ It is said in Sedgwick & Wait on Trial of Title of Land, § 758: “The adverse intention of the tenant,...