Sullivan v. Groves

• Decision Date: 17 June 1919
• Docket Number: 4502
• Citation: 42 S.D. 60,172 N.W. 926
• Parties: MARY H. SULLIVAN and CLARE SULLIVAN, Plaintiffs and respondents, v. SARAH J. GROVES et al., and the Executor or Administrator of the Estate of William Groves, deceased, Defendants and appellants.
• Court: South Dakota Supreme Court

42 S.D. 60

172 N.W. 926

MARY H. SULLIVAN and CLARE SULLIVAN, Plaintiffs and respondents,

v.

SARAH J. GROVES et al., and the Executor or Administrator of the Estate of William Groves, deceased, Defendants and appellants. South Dakota Supreme Court Appeal from Circuit Court, Aurora County, SD Hon. Frank B. Smith, Judge #4502--Reversed Shull, Gill, Sammis & Stillwell, Bakewell & Bakewell, Brown & Brown Attorneys for Appellants. Fellows & Fellows Attorneys for Respondents. Opinion filed June 17, 1919. Rehearing denied August 15, 1919

GATES, J.

This action, begun in the year 1914, involves the ownership of a tract of 58.17 acres of land the boundaries of which are of the following lengths: North line, 13 chains and 55 links; east line, 38 chains and 42 links; south line, 17 chains and 15 links; west line, 37 chains and 80 links. The plaintiffs claimed that it constituted a part of the northeast N. of section 13, township 103, range 65. The defendants claimed that it constituted a part of the northwest N. of section 18, township 103, range 64. This land was involved in the same survey as that in Mason v. Braught, 146 N.W. 687. Findings, conclusions, and judgment were rendered for plaintiffs. The defendants appeal from a judgment and order denying new trial.

Conceding, by not raising upon this appeal, the correctness of the court's finding that the range line between ranges 63 and 64 coincides with the eastern boundary of this tract instead of the western boundary, appellants yet contend that respondents had no right of action, because they or their ancestors, predecessors, or grantors were not seized or possessed of the tract within 20 years before the beginning of the action, and that appellants, their ancestors, predecessors, or grantors, had been constantly in possession of said tract ever since the year 1883. The three pertinent findings of fact on this appeal are as follows:

"VIII. That about the year 1886, with the consent and under the direction of the said Ira J. Lennox, the then owner of the said northwest quarter of section 118, the defendant, J. E. Helton, who was then occupying said premises as a tenant of said Lennox, placed a fence around said quarter section; that said fence was the property of said Helton and erected for his own use; that the west side of said fence was placed on or near a line which said Helton and Lennox supposed to be approximately the true line between said sections 13 and 118 and inclosed the land in controversy in this action; that said fence was afterwards, and about ten years prior to the trial of this action, moved by the said Helton to a line about two rods east of its first location, where it now stands and incloses the land in controversy.

"IX. That shortly after the erection of said fence, and in the same year, Lennox transferred said northwest quarter of section 18 to William Groves, and from that time to the commencement of this action the said J. E. Helton did, and does now, occupy said land, inclosed by his fence, including the land in controversy in this action, and used the same by sufferance of said William Groves and his heirs without paying any rent and without any formal written or oral lease or contract; that neither said William Groves nor his heirs ever had any knowledge prior to the commencement of this action, of the boundaries of said northwest quarter of section 18 or the location of said fence on the west side thereof; that neither said Groves nor his heirs have ever occupied or, possessed the land in controversy otherwise than as hereinbefore stated.

"X. That neither said Ira J. Lennox nor William Groves or his heirs ever had any intention of occupying or authorizing the defendant J. E. Helton to occupy any land not actually included within the true boundaries of said northwest quarter of section 18, or any knowledge that said J. E. Helton was so occupying land not within the northwest quarter of section 18, and that the defendant J. E. Helton was occupying the strip in controversy in the belief that the fence approximately marked the true line with the intention to claim, only to the true line wherever it might be, and without any intention to claim to the line marked by his fence, regardless of the location of the true line, and without any intention of encroaching or trespassing upon the northeast quarter of section 13, or of acquiring any portion of said quarter by adverse possession, or otherwise, but with the intention to claim and occupy only such land as was actually included within the northwest quarter of section 18."

Section 43, C. C. P. (section 2280, Rev. Code 1919), which has been the law of this jurisdiction ever since the year 1868, provides:

"No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appears that the plaintiff, his ancestor, predecessor or grantor was seized or possessed of the premises in question within twenty years before the commencement of such action."

The New York courts have held that this section applies only to actions at law. See Bliss NY Ann. Code (6th Ed.) § 365, and cases cited. But, if that is so, which we do not decide, nevertheless the provisions of section 44, C. C. P. (section 2281, Rev. Code 1919), apply to the present action even if section 43 does not. Section 44, C. C. P., lays down the same rule as to any cause of action "founded upon the title to real property."

Section. 46, C. C. P. (section 2283, Rev. Code 1919), declares that possession "... shall be deemed to have been under and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title for twenty years before the commencement of such action."

It is under this section that respondent justifies finding X. We are of the opinion that finding X is not sustained by the evidence, because to our minds the clear preponderance of it indicates that Helton as tenant claimed the right to hold to the fence. We do not think the following italicized portion of his testimony is a justification of the finding; yet it is the only bit of evidence that can be tortured into a warrant for it. Helton's evidence was as follows:

"When I first went down there, I missed the quarter corner. It was my intention to try to put my fence on the correct line, and it has been my intention all the time to hold to the correct line. I don't claim to hold any further than the correct line. I claim to hold out as far as that fence is. I thought that fence was on the correct line when I erected it, and I think so yet. I never owned the northwest of 18. I have held it under the Groves family ever since they got it. It was fenced when they got it, neither Groves nor Lennox ever lived on the land."

Section 47, C. C. P. (section 2284, Rev. Code 1919), defines adverse possession as follows:

"Whenever it shall appear that the occupant, or those under whom he claims, entered into the possession of premises under claim of title, exclusive of any other right, founding such claim upon a written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree or judgment, or of some part of such premises, under such claim for twenty years, the premises so included shall be deemed to have been held adversely. ..."

The facts in this case bring it clearly under the provisions of this section. The occupant, a tenant, claimed under the several grantees in the chain of title to the northwest 1/4 of section 18, township 103, range 64, beginning back in 1883. One Rutter acquired the said land by patent from the government. He conveyed to Lennox by deed in 1883. In 1883 Helton, the owner of the northeast 1/4 of said section 18, did some breaking for Lennox on the north side of Lennox's land and as far west as the present fence. Lennox was present when the breaking was done, and they located the west line of his land by a fence on section 7. Helton testified that the distance along the north line of section 18 from his own northeast corner to the fence in question is about 24 rods short of 320 rods. From 1883 to 1886 he cultivated that piece of breaking as tenant of Lennox. In 1886 Helton, by the direction of Lennox, inclosed by fence the whole of said quarter section, including the tract in dispute. It thus appears that Lennox and the tenant entered into possession of the tract in question under Lennox's claim of title; such claim being founded "upon a written instrument as being a conveyance of the premises in question." It further appears that the tenant had been in actual, open, notorious, and uninterrupted possession of said tract for more than 28 years prior to the beginning of this action; i. e., there was "a continued occupation and possession of the premises included in such instrument ... under such claim [viz., the claim that the instrument was a conveyance of the premises in question] for 20 years." Therefore "the premises so included [under such claim] shall be deemed to have been held adversely" to plaintiffs. Therefore the presumption arising under section 46, C. C. P., was completely overthrown and actual adverse possession established. Of said section 47 this court said in Murphy v. Dafoe, 99 N.W. 86:

"To constitute such adverse possession the essential requirement seems to be that the party shall enter under a claim of title exclusive of any other right, founding such claim upon a written instrument."

Upon this subject this court said in Mason v. Braught, supra:

"During all of such time they had been making improvements thereon, believing in good faith that they were the owners of the premises so occupied. At this late date and under the circumstances disclosed by the record in this case, the defendant should not be heard to claim...