Stewart v. Small

• Decision Date: 12 July 1920
• Parties: STEWART et al. v. SMALL et al.
• Court: Maine Supreme Court

110 A. 683

STEWART et al.

v. SMALL et al.

Supreme Judicial Court of Maine.

July 12, 1920.

On Motion from Supreme Judicial Court,

Piscataquis County, at Law.

Action by Joseph Stewart and others against James S. Small and others. Verdict for defendants, and plaintiffs move for new trial. Motion sustained, and new trial granted.

Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ.

John W. Manson and Harry R. Coolidge, both of Pittstield, for plaintiffs.

James H. Hudson, of Guilford, C. W. Hayes, of Foxcroft, and J. S. Williams, of Guilford, for defendants.

DUNN, J. Real action respecting an uncultivated and uninclosed lot of land, numbered 90, containing approximately 160 acres, in the incorporated town of Wellington. Plea nul disseizin. Verdict was for defendants, Paintiffs present the case on motion in usual form. They have the true record title. Relying on a chain of recorded deeds, the first in which is one to the corporation of the town of Wellington from its treasurer, on sale of the lot, in the year 1875, for nonpayment of taxes, and additionally on common-law adverse possession, defendants set up as to the whole lot a better title in themselves. Failing this, then, with regard to the south half of the lot, defendants maintain that they have title paramount to that of the plaintiffs, by force of the ground that, continuously for 20 years next prior to the commencement of suit for recovery of possession of the land, they and those from whom in immediate line they derivately claim (1) have claimed said south half under recorded deeds; (2) have paid all taxes assessed thereon; (3) and have held an exclusive, peaceable, uninterrupted, and adverse possession thereof comporting with the ordinary management of such kind of land in the state of Maine. R. S. c. 110, § 18.

Substantial infirmities patent on the face of the document, and not elsewhere corrected, render the tax deed, with which paper title of defendants begins, inoperative to convey the described land. There is failure to show that the treasurer of the town, in making sale of the lot, regarded legislative direction concerning the extent of the delinquent estate "required" to be sold. to defray the unpaid tax and charges. R. S. 1871, c. 6, § 160. The deed contains recital that the treasurer offered for sale such part of the real estate as "would be sufficient to pay the

tax ——," and that, "No person offering to

pay the same for a fractional part," he sold the whole. But what, in the treasurer's opinion, was "sufficient" for the purpose may have been more than "was required" therefor. French v. Patterson, 61 Me. 203. More than that, it does not appear that the treasurer actually exposed for sale, and sought offers for a purchase of, a fractional part of the land adequate to pay the tax and charges, and could obtain no bid. Ladd v. Dickey, 84 Me. 190, 24 Atl. 813; Milliken v. Houghton, 97 Me. 447, 54 Atl. 1075. It follows that. defendants' paper title is founded on a nullity.

Nor have defendants sustained the proposition that common-law adverse claim of the land ripened into title. There is no fixed rule whereby actual possession of real property by a hostile claimant may be determined. Ever to be taken strictly, the constituent elements of common-law adverse possession must be established by clear proof of acts and conduct fit to put a man of ordinary prudence, and particularly the true owner, on notice that the estate in question is actually, visibly, and exclusively held by a claimant in antagonistic purpose. The acts here advanced as indicative of ownership, taken singly or collectively, and comprising, intermittingly over a period of at least 20 years, the cutting of timber, from which, in the nearby vicinity of the lot, chiefly was built two dwelling houses, a store building, and a schoolhouse; the removal therefrom, with frequency, of fuel wood for use at claimant's house; the cutting, sale, and use of shingle stuff; of material for shovel handles; of lumber other than that for the mentioned buildings; the digging of juniper knees; together with the erecting and maintaining for some years, less, however, than 20, of a camp on the shore of a small pond in the northeast corner of the lot, resorted to, now and then, by hunting or fishing or vacation parties, as well as other acts of lesser moment, whether personally by defendants or by others with their permission—fail to show that the lot was exclusively possessed by anybody, and fall far short of showing an ouster of the true owner from his constructive possession thereof, followed thereafter during the period for which adverse possession must be held, by that open, notorious, hostile, exclusive and continuous actuality of possession essential at common law, which would enable these defendants, in denial of a real record title unaffected by mere nonuse, thereby to evince legally meritorious title in themselves. Chandler v. Wilson, 77 Me. 76; Hudson v. Coe, 79 Me. 83, 8 Atl. 249, 1 Am. St. Rep. 288; Adams v. Clapp, 87 Me. 321, 32 Atl. 911; Smith v. Sawyer, 108 Me. 485, 81 Atl. 868; Webber v. McAvoy, 117 Me. 326, 104 Atl. 513.

Anticipating conclusion of their failure to establish title otherwise, defendants argue, touching the south half of the lot, that they have shown in themselves, in a manner different from the common rule, a title outranking that of plaintiffs. They insist that, continuously for 20 years, counting backward from commencement of suit by true record owner for recovery of possession, all a statute (R. S. c. 110, § 18) exacts has been fully met. The statute adverted to reads:

"No real or mixed action, for the recovery of uncultivated lands or of any undivided fractional part thereof, situated in any place incorporated for any purpose, shall be commenced or maintained against any person, or entry made thereon, when such person or those under whom he claims have, continuously for the twenty years next prior to the commencement of such action, or the making of such entry, claimed said lands or said undivided fractional part thereof under recorded deeds; and have, during said twenty years, paid all taxes assessed on said lands, or on such undivided fractional part thereof, however said tax may have been assessed whether on an undivided fractional part of said lands or on a certain number of acres thereof equal approximately to the acreage of said lands or of said fractional part thereof; and have, during said twenty years, held such exclusive, peaceable, continuous and adverse possession thereof as comports with the ordinary management of such lands or of undivided fractional parts of such lands, in this...