Rude v. Marshall

Decision Date25 June 1917
Docket Number3784.
CourtMontana Supreme Court

Appeal from District Court, Silver Bow County; J. B. McClernan Judge.

Action by John Rude, administrator of the estate of Magna Rude deceased, against J. W. Marshall. From judgment for plaintiff, defendant appeals. Reversed and remanded.

L. J Hamilton, of Butte, for appellant.

W. F Davis, of Butte, for respondent.


In 1897 Joseph Bohler was the owner of lot 1, block 10, of the Butte town site, 42 feet wide east and west, and 100 feet north and south, and then sold the south half (42X50) to the Parrys, and at the same time erected a fence on or near the line dividing the two portions. By mesne conveyance M. T. Walsh obtained title to the north half about 1898, and in 1905 he sold and conveyed it to defendant, Marshall, who during the same year erected upon the property a substantial stone building, the south wall of which extended to the line of the Bohler fence. In 1909 Magna Rude succeeded to the interest of the Parrys in the south half, and in 1914 she commenced this action in ejectment, claiming that defendant's building encroaches upon her ground 1.12 feet at the west end of the building and 2 feet at the east end or Alaska street front. By answer the defendant denied all the material allegations of the complaint, and pleaded estoppel and title by adverse possession. Plaintiff prevailed in the court below, and defendant appealed.

Without stopping to consider the unsatisfactory evidence offered in support of plaintiff's claim, or the merits or demerits of defendant's contention that plaintiff is estopped to assert title to the ground in dispute, we confine ourselves to the defense of adverse possession, as it is determinative of the controversy.

There is not any conflict in the evidence. The question for determination is: What is the legal effect of the evidence produced by defendant in support of his claim to title by adverse possession? For 16 years prior to the commencement of this action, defendant and his predecessor Walsh were in the quiet, undisputed, and uninterrupted possession of the ground north of the Bohler fence, including the north half of lot 1 and the ground brought into controversy by this action. Since 1905 defendant's possession has been characterized by every element which enters into the doctrine of prescription. However, in order to sustain this defense it is necessary for defendant to tack on his possession to that of his predecessor Walsh for at least a sufficient period to amount in the aggregate to 10 years, the period of the statute of limitations. While it is beyond question that Walsh was in actual, exclusive, peaceable, and uninterrupted possession from 1898 until he sold to Marshall, it is the contention of plaintiff that the evidence is insufficient to show that Walsh's possession was hostile.

Plaintiff having shown that she secured a deed to the south half of the lot which presumably conveyed the legal title to her, it will be presumed in the first instance that defendant held possession of the disputed strip in subordination to such legal title if, as we will assume, the fence actually encroaches upon the south half of the lot. Section 6435, Rev. Codes; Lamme v. Dodson, 4 Mont. 560, 2 P. 298; Peters v. Stephens, 11 Mont. 115, 27 P. 403, 28 Am. St. Rep. 448.

The burden of proof was therefore upon the defendant to show that his possession and the possession of his predecessor Walsh, covering in the aggregate a period of ten years immediately prior to the commencement of this action, was adverse. Jennings v. Gorman, 19 Mont. 545, 48 P. 1111. If defendant proved such adverse possession for the required period, then he showed a title absolute in himself to the disputed strip. Section 4571, Revised Codes, provides: "Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar an action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all." State v. Auchard, 22 Mont. 14, 55 P. 362; Morrison v. Linn, 50 Mont. 396, 147 P. 166.

It is not made certain by this record just what purpose Bohler had in erecting the fence in the first place, but from the fact that he built it at the time he sold the south half of lot 1 to the Parrys, it is fairly inferable that it was his purpose to mark the dividing line between the portion sold and the portion to the north retained by himself; but, however this may be, the character of the possession of the portion north of the fence after Walsh purchased is not left in doubt. In 1898, while the Parrys owned the south half of the lot and were in actual possession of whatever portion thereof lay south of the fence, and while Walsh owned the adjoining north half and was in possession of all of the lot north of the fence, he made known the fact that he was having some difficulty, and to avoid it he employed a contractor to repair and extend the Bohler fence. In company with the contractor, Walsh pointed out where the work was to be done, and under his direction the contractor built into and upon the old fence, making of it a substantial inclosure 10 feet high. That this act was directed against the Parrys is certain. They were the adjoining owners in possession of and occupying the ground immediately south of the fence, and the only ones against whom it could have been aimed. But, furthermore, Mrs. Parry testified that she was present when the work was being done, and spoke to the contractor concerning it. "He couldn't have it too high, and I told him to put it higher." The fence was maintained in that condition until removed by Marshall to make way for his building.

But it is contended by plaintiff that the evidence does not disclose that Walsh ever told any one that he claimed all the ground up to the fence, and therefore it is insufficient to show that his holding was adverse, and Janke v. McMahon, 21 Cal.App. 781, 133 P. 21, is cited as authority for this contention, and apparently supports it. In the course of the opinion it is said:

"The disputed strip was inclosed with and as a part of the lot belonging to McMahon, Sr., and the back porch of his house partially rested upon said strip, but there is no further basis for the claims of title. There is no evidence that he ever declared that he owned the land, or that he intended to retain it as against the holder of the legal title."

If it was the intention to announce the doctrine that one who claims to hold adversely must make his intention manifest by word of mouth, proclaiming from the housetops his purpose, then we must respectfully decline to follow or approve a rule directly opposed to reason and the authorities generally. It is an old adage, "Actions speak louder than words," and the truth of the maxim is nowhere made more apparent than in cases involving the claim of adverse possession of real property. In Lamme v. Dodson, above, this court said:


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