Rupley v. Fraser
| Decision Date | 18 February 1916 |
| Docket Number | 19,608 - (236) |
| Citation | 156 N.W. 350,132 Minn. 311 |
| Parties | GEO. RUPLEY v. JOHN G. FRASER AND OTHERS |
| Court | Minnesota Supreme Court |
Action in the district court for Itasca county to determine adverse claims to certain vacant and unoccupied land and to restrain defendants from asserting or enforcing any claim to any right, title, estate, lien or interest therein adverse to plaintiff. The separate answer of defendant Fraser alleged the land was in the possession of defendant John G. Fraser and alleged that for more than 15 years prior to the beginning of the action he had been in adverse uninterrupted, continuous, hostile, open, actual and exclusive possession of the same under claim of right thereto, and during that time had paid taxes thereon. The case was tried before Stanton, J., and a jury which returned an affirmative answer to the question whether the defendant John G. Fraser for more than 15 years prior to the commencement of the action had been in the adverse uninterrupted, continuous, hostile, open, actual and exclusive possession of the land under claim of right thereto, and found the value of the improvements placed thereon by defendant to be $127.51. From an order denying his motion for judgment notwithstanding the verdict on the issue of adverse possession or for a new trial, plaintiff appealed. Affirmed.
Adverse possession -- definition of "hostile" possession.
1. Possession of land to be adverse must be actual, open, continuous, hostile and exclusive. By "hostile" is meant that the possession must be with intent to claim and hold the land against the true owner and the whole world, but it is not necessary that the occupant enter under claim of ownership in fee.
Adverse possession -- where tract is traversed by streets used by the public.
2. A person may be in adverse possession of land though it is traversed by public streets, and, while he cannot acquire by adverse user the rights of the public in the streets, he may by occupation of the whole tract acquire title to the portions not dedicated to public use, and he may also acquire title to the fee of the streets.
Adverse possession -- assignment of tax certificate construed.
3. One in adverse possession may acquire a tax certificate on sale of the land for taxes, and may assign the same without breaking the continuity of his possession. An instrument of assignment, given in this case by one in adverse possession and in form a sale and transfer of all his interest in the land, is held not to break the continuity of adverse possession: First, because it was not delivered until after title by adverse possession matured; and, second, because intended only as an assignment of the tax lien. Although the instrument was in writing, still, in litigation between one party to the instrument and strangers, the real nature of the transaction may be shown by parol evidence.
Taxation -- forfeiture to state no interruption to adverse possession.
4. There is no real forfeiture to the state for taxes in this state, and what is sometimes called forfeiture to the state upon the expiration of three years from date of sale to the state does not interrupt adverse possession.
Ralph A. Stone, for appellant.
Thwing & Rossman, for respondents.
Plaintiff has the record title to a tract of platted land in the village of Laprairie. Defendant John G. Fraser claims title by adverse possession. The jury found in his favor. Plaintiff appeals.
In 1897 this land was "common." In July of that year defendant John G. Fraser took possession of it; inclosed it with an adjoining tract of his own by a fence of posts and wire; used it as a pasture for stock, and, save for a little shifting of fences, he continued to so occupy it without interruption for more than 15 years. In the meantime he paid the taxes thereon, except that in some cases he purchased tax certificates at tax sales. There is little question as to the sufficiency of his title by adverse possession, unless it is to be defeated by some one or more of the facts which we will now consider.
1. This defendant, on cross-examination, said that in the earlier years of his occupation he did not claim title in fee. It is contended that he therefore could not acquire title by adverse possession. This is not the law. Possession to be adverse must be "actual, open, continuous, hostile, exclusive and accompanied by an intention to claim adversely." Sherin v. Brackett, 36 Minn. 152, 30 N.W. 551; Dean v. Goddard, 55 Minn. 290, 297, 56 N.W. 1060. By "hostile" is meant that possession must be with intent to claim and hold the land as against the true owner and against the whole world, Mattson v. Warner, 115 Minn. 520, 521, 132 N.W. 1127; but it does not mean that the occupant must upon entry claim ownership in fee. Any such rule would defeat most claims of adverse possession.
Adverse possession may originate in naked, wilful trespass. It usually does. The original entry may be tortious and without any pretense of rightful claim, but with a plain purpose to usurp title and possession. It is not necessary that the disseisor should believe or assert that he has a right to enter. Mattson v. Warner, 115 Minn. 520, 522, 132 N.W. 1127. Good faith is not an element required. The terms "claim of title," "claim of right," or "claim of ownership," frequently found in the books in this connection, mean nothing more than the intention of the disseisor to appropriate and use the land as his own to the exclusion of all others. Carpenter v. Coles, 75 Minn. 9, 77 N.W. 424; Cool v. Kelly, 78 Minn. 102, 80 N.W. 861; Mattson v. Warner, 115 Minn. 520, 132 N.W. 1127. The statute of limitations is distinctly a statute of repose. It was framed, not out of consideration for the disseisor, but in furtherance of a public policy which deems it important that lands should not remain for long periods of time unused, unimproved, unproductive and with no one discharging the public duty of paying taxes thereon. The statute prefers an interloper who will utilize the land and assume the burdens of ownership, to the true owner who abandons his land and its burdens. Dean v. Goddard, 55 Minn. 290, 56 N.W. 1060.
2. Section 7695, G.S. 1913, provides that "no occupant of a public way * * * shall acquire, by reason of his occupancy, any title thereto." It is contended that by reason of this statute land traversed by dedicated streets cannot be acquired by adverse possession without separate occupation of the separate lots or blocks. We do not agree with this contention. Possession may be actual, open, continuous, hostile and exclusive, even though part of the land may be a public street. Howison v. Masson, 29 App. Cas. (D.C.) 338. The fact that this part of the land may not be subject to disseisin does not change the character of the possession, nor does it diminish the right of the occupant in relation to that part of the land which is subject to disseisin. A man may admit the right of public easement or hold without hostility to such right, and yet hold adversely. Maas v. Burdetzke, 93 Minn. 295, 101 N.W. 182, 106 Am. St. 436. Under our laws the abutting owner owns the fee in the adjacent street. We see no reason why the rights of the fee owner may not be acquired by adverse possession, though the rights of the public may not be. Cady v. Fitzsimmons, 50 Conn. 209, Woodruff v. Paddock, 130 N.Y. 618, 29 N.E. 1021; Lambert v. Huber, 22 Misc. 462, 50 N.Y.S. 793; Flick's Estate, 6 Kulp. (Pa.) 329; Cocke v. Texas & N.O.R. Co. 46 Tex. Civ. App. 363, 103 S.W. 407.
3. Defendant John G. Fraser, instead of paying all the taxes on this land, permitted the land...
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