Romans v. Nadler

• Decision Date: 14 April 1944
• Docket Number: No. 33419.,33419.
• Citation: 14 N.W.2d 482,217 Minn. 174
• Parties: ROMANS et al. v. NADLER et al.
• Court: Minnesota Supreme Court

14 N.W.2d 482

217 Minn. 174

ROMANS et al. v. NADLER et al.

No. 33419.

Supreme Court of Minnesota.

April 14, 1944.

Rehearing Denied June 9, 1944.

Appeal from District Court, Ramsey County; Albin S. Pearson, Judge.

Action by Edgar D. Romans and another against Bertha Nadler and another to establish boundary line and other relief. From a judgment adjudging that plaintiffs were owners by prescription of certain portions of adjoining lots owned by defendants, adjoining defendants from erecting any fence or interfering with plaintiffs' rights as established by judgment directing defendants to move wire fence erected by them and establishing the boundary between the two properties, the defendants appeal.

Reversed, with directions to amend judgment in accordance with opinion.

Asa G. Briggs, of St. Paul (Edward A. Knapp, of St. Paul, of counsel), for appellants.

Paul C. Thomas, of St. Paul, for respondents.

PETERSON, Justice.

The parties are the record owners of adjoining residential properties in the city of St. Paul. Plaintiffs' lot is number 2 and defendants', which lies westerly thereof, is number 3 in a certain block. Defendants appeal from the judgment (1) adjudging plaintiffs the owners "by prescription" of three portions of lot 3 presently to be mentioned and of an easement to go upon lot 3 or so much thereof as is reasonably necessary and at such times as may be reasonably necessary for the purpose of placing ladders and other equipment thereon in connection with the putting on and taking off of screens and storm windows and of cleaning, painting, and repairing on the west side of plaintiffs' house; (2) enjoining defendants from erecting any fence or structure interfering with plaintiffs' rights as established by the judgment; (3) directing defendants to remove a wire fence erected by them on lot 3 along the eastern boundary thereof under the eaves of plaintiffs' house; and (4) fixing and establishing the boundary line between the two properties.

Plaintiff Edgar D. Romans' father became the owner of lot 2 in 1898, and ever since that date plaintiffs and their predecessors in title have occupied and used the premises. Nathan Nadler became the owner of lot 3 in 1921, and ever since that time he and defendants as his successors in title have occupied and used the premises. Plaintiffs' house is close to the west line of lot 2. Their garage encroaches on lot 3. Defendants' house is a considerable distance from the line between the lots.

The first portion of lot 3 adjudged to belong to plaintiffs "by prescription" is a strip underneath the eaves of the house on lot 2. It is 49 feet long and .75 feet wide on the north and 0.9 feet wide on the south side. The evidence shows that ever since 1898 the eaves and gutters of plaintiffs' house have extended over the strip in question. According to plaintiffs' evidence, the gutters are of ample size to take care of water draining from the roof and do not drip "except under a very severe cloudburst or something of that sort which any gutter would drip over"; and that, if they get wet on the outside, they drip. There was no evidence that the gutters could or did become wet on the outside or that there was any dripping, except that since 1939, according to the testimony of one of the defendants, the gutters at times have discharged water on the wire fence. During all the time in question defendants have been in actual physical possession of the strip in question.

The second strip extends from the south side of the house to a point 1.85 feet west of the west line of lot 2 and 13 feet north of the alley in the rear. It is 1.85 feet wide on the north and 2.10 feet wide on the south. The evidence shows that it was fenced and occupied and has been used as part of lot 2 ever since 1924, if not prior to that time. The eaves and gutters of the garage project 2.20 feet over the south 6.8 feet of this strip.

The third strip is 13 feet long and 2.20 feet wide on the north and 2.43 feet on the south and extends from the alley to the southerly end of the fence. All of it lies underneath the eaves and gutters of the garage. The gutters have dripped on the entire area underneath during a period in excess of 15 years.

The evidence with respect to the easement is rather sketchy. It tends to show that plaintiff Edgar D. Romans and his father used lot 3 while putting on and taking off screens and storm windows once every six months. During the period from 1898 to 1941, the time of trial, the house was painted six times — about once in every six or seven years — and each time the ladders used by the painters were set on lot 3. The evidence shows that no express permission was given by defendants or their grantors for such entries. Plaintiff Edgar D. Romans testified that he did not think any permission was necessary, because most of the time he thought he was on his own property (lot 2) and he took for granted that he did not need permission to enter on lot 3 for the purposes mentioned, because it never occurred to him that anybody would be foolish enough to object — his words were that "anybody would object to such a foolish thing"; and because, since he never had any trouble with anybody, he would not think of asking defendants any more than he would his neighbors on the east side, some people by the name of Hartman.

The trial court established the line between lots 2 and 3 so as to include as belonging to plaintiffs all areas under the eaves and gutters of the house and the garage and the area fenced and occupied as part of lot 2. It held in effect that the projection of plaintiffs' eaves and gutters and the dripping therefrom constituted adverse possession of the parts of lot 3 underneath, which ripened into title because of its continuance for over 15 years. It also held that the uses of lot 3 for which it adjudged an easement in favor of plaintiffs had all the essentials necessary to give rise to prescriptive rights. On this appeal, the correctness of the decision below in the respects mentioned is challenged.

1. "Prescription" is the term usually applied to incorporeal hereditaments; "adverse possession" to lands. Abel v. Love, 81 Ind.App. 328, 143 N.E. 515. Because of the close connection between them, the terms are often used interchangeably. Mueller v. Fruen, 36 Minn. 273, 30 N.W. 886; Murray v. Scribner, 74 Wis. 602, 43 N.W. 549. We construe the word prescription, where the findings and judgment refer to title by prescription to mean adverse possession.

Adverse possession of real property ripens into title in the adverse possessor or disseizor where it continues for the period allowed for the recovery of real estate, which is 15 years, under Minn.St. 1941, § 541.02, Mason St.1927, § 9187. There are five essentials of adverse possession. It must be hostile and under a claim of right, actual, open, continuous, and exclusive. Washburn v. Cutter, 17 Minn. 361, 17 Gil. 335; 1 Dunnell, Dig. & Supp. § 113. It must appear from the nature and circumstances of the possession that it is hostile and with intention to claim adversely, in order that the owner may be informed of it and that he may determine whether the acts consist of mere trespass or assertion of adverse title, lest he be misled into acquiescence in what he might reasonably suppose to be a mere trespass, when he would not acquiesce in the assertion of rights adverse to his title. It must be continuous, because, upon any cessation or interruption, the possession, in contemplation of law, is again in the holder of the legal title. The disseizor must not only claim adversely, but must make that fact known; or, as it is sometimes said, he must keep his flag flying. Costello v. Edson, 44 Minn. 135, 46 N.W. 299; Dean v. Goddard, 55 Minn. 290, 56 N.W. 1060.

Occasional and sporadic trespasses for temporary purposes, because they do not indicate permanent occupation and appropriation of land, do not satisfy the requirements of hostility and continuity, and do not constitute adverse possession, even where they continue throughout the statutory period. Krueger v. Market, 124 Minn. 393, 145 N.W. 30; Bazille v. Murray, 40 Minn. 48, 41 N.W. 238; 2 C.J.S., Adverse Possession, §§ 24, 125b. This is especially true where, as here, there is nothing about each separate trespass to indicate that it is anything but a trespass, much less an assertion of adverse right likely to be persisted in.

By the application of these rules to the facts of the case, plaintiffs acquired title by adverse possession to those parts of defendants' lot which they enclosed with the fence and occupied, Gehan v. Morgan, 189 Minn. 250, 248 N.W. 820, and which they occupied and possessed by the encroachment of the garage. Deacon v. Haugen, 182 Minn. 540, 235 N.W. 23; Seymour, Sabin & Co. v. Carli, 31 Minn. 81, 16 N.W. 495. As to these, the possession was hostile and under claim of right, actual, open, continuous, and exclusive. But, they did not acquire any title to the parts under the eaves and gutters of the house and the garage from the end of the fence to the alley, because those parts were in the actual possession of defendants. Where property is in the actual possession of the owner, use by an adjoining owner for projection of the eaves of his building and for dripping is no basis for a claim of title by adverse possession. Randall v. Sanderson, 111 Mass. 114; Keats v. Hugo, 115 Mass. 204, 15 Am.Rep. 80. The entries on the part under the eaves of the house to put on and take off storm windows and screens twice a year and to paint about once in six years were occasional and sporadic only, and no title by adverse possession could be based thereon.

2. Statutes of limitation do not by their terms apply to actions involving incorporeal hereditaments such as easements. An easement by prescription rests upon the fiction of a lost grant. By analogy to title by adverse possession, an adverse user of an easement for the statutory period is held to be evidence...