Towson v. Denson

• Decision Date: 18 February 1905
• Citation: 86 S.W. 661,74 Ark. 302
• Parties: TOWSON v. DENSON
• Court: Arkansas Supreme Court

86 S.W. 661

74 Ark. 302

TOWSON v. DENSON

Supreme Court of Arkansas

February 18, 1905

Appeal from Sevier Chancery Court JAMES D. SHAVER, Chancellor.

Affirmed.

Cause remanded with instructions.

E. F Friedell and S. R. Allen, for appellant.

Section 6643 of Sandels & Hill's Digest is inoperative. 46 Ark 100; 53 Ark. 204; 55 Ark. 192. The act of 1899 must be strictly construed. 70 Ark. 481; 59 Ark. 356; Sedg. Stat Const. 188; Cooley, Const. Lim. 69; 56 Ark. 495; 7 Johns 502. The act is retrospective. 5 Ark. 510; 6 Ark. 492. The act takes away private property without due process of law. 129 Mass. 561; 14 How. 501; 129 Mass. 562; Cooley, Const. Lim. 443; 20 Mich. 406. The benefit under this act cannot be derived until one has paid taxes under color of title for seven years, three of which must be after March 18, 1899. Wood, Lim. 119; 24 Ark. 385; 9 Ark. 416; 55 Ark. 383; 6 Ark. 492. Actual possession must unite with color of title and payment of taxes. 31 N.E. 430; 17 Wall. 596; 64 S.W. 621.

Austin & Danaher, amici curiae, for appellee.

Remedial statutes are to be liberally construed. 26 Am. & Eng. Enc. Law, 676; 30 Ark. 608; 101 U.S. 597; 26 N.J.Eq. 79; 30 Am. St. 254; 51 Am. St. 174; 123 U.S. 276; 140 U.S. 453; 148 U.S. 490; 65 Ark. 148. Restricting or qualifying clauses must be strictly construed, so as not to interfere with the scope of the principal clause. 41 Tex. 449; 40 U.S. 445; 139 U.S. 438; 93 U.S. 78; 4 Clark, 315.

H. F. Roleson, amicus curiae.

Statutes are never construed so as to give them a retrospective effect. 6 Ark. 484; 14 Ark. 464; Black, Inter. Laws, § 103; 10 Serg. & R. 97; 57 Ark. 64; 24 Ark. 385; 26 A. 925. Where the will of the Legislature is clearly expressed, courts should adhere to literal expression. 35 Ark. 56; 56 Ark. 110; 48 Ark. 308; 36 Ark. 331. The general rule is that no statute is to have a retrospective construction. 15 Ia. 257; 10 Wend. 365; 6 N. Y. Ch. 726; 1 Wood, Lim. 41.

John B. Jones, amicus curiae.

Limitation laws are based on possession. 30 Ark. 655; 40 Ark. 243. Adverse possession of rough lands, mostly unfit for cultivation, is shown by proof of payment of taxes, blazing out lines, cutting timber, taxed in his own name and claiming to own and offering the land for sale. 151 Ind. 343; 98 Ia. 297. A party has no vested right in a rule of evidence. 64 Kan. 47; 25 Conn. 195; 8 Cyc. 924; 51 Ark. 419; 6 Wis. 257; 11 Wis. 432; 8 S. & R. 357; 9 Pa. 71. In considering the meaning of an act we must consider prior acts relating to the same subject. Endlich, Interpretation of Stat. § 43; 105 Pa.St. 610; 1 Pa.St. 353. Meaning of the word "deemed." 14 N.J.L. 446; 85 Cal. 80; 24 P. 648; 67 Kan. 648; 73 P. 920; 5 F. 11; End. Inter. Stat. §§ 27, 29, 318, 70, 72.

George Vaughan, for appellee.

COHN Special Judge. HILL, C. J., dissenting. Mr. Justice RIDDICK concurs this construction.

OPINION

COHN, Special Judge.

The principal question presented to the court in this case by the appellant relates to the construction to be given to an act of the General Assembly of the State, entitled "An act for the protection of those who pay taxes on land," approved March 18, 1899, which is in the following words:

"That unimproved and uninclosed land shall be deemed and held to be in possession of the person who pays taxes thereon if he have color of title thereto; but no person shall be entitled to invoke the benefit of this act unless he and those under whom he claims shall have paid such taxes for at least seven years in succession, and not less than three of such payments must be made subsequent to the passage of this act." Acts 1899, p. 117; Kirby's Dig. § 5057.

It is conceded by both sides to this litigation that the act must be construed by itself, and that if this court shall decide in this case that the construction contended for by appellee is correct, and that the act as so construed is valid, then the decree below must be affirmed. If, on the contrary, the court holds in favor of the construction contended for by the appellant, or that the act is invalid, then the decree must be reversed, and the prayer of the complaint must be denied.

Accepting the issue, as thus presented, we enter upon a discussion of the proper construction to be given to the act referred to.

It is our duty to construe the act just as it reads, if that can be done without involving absurdities. Guided by this elementary and primary rule of construction, we find, first, "that unimproved and uninclosed land shall be deemed and held to be in possession of the person who pays taxes thereon if he have color of title thereto." If the terms of the act ended here, there could be no controversy respecting its meaning, for it would manifestly be the legislative intent that he only should be deemed to be in possession of unimproved and uninclosed land who, having color of title to the land, paid taxes thereon for the given year or years, the possession for each year corresponding legally with each year's taxes that had been assessed and paid.

This meaning, however, we are told, is altered by the words of the act which follow the part of the act just quoted. Is this true? We give, secondly, that part of the act which is in these words, viz., "but no person shall be entitled to invoke the benefit of this act unless he and those under whom he claims shall have paid such taxes for at least seven years in succession, and not less than three of such payments must be made subsequent to the passage of this act." Are we to read this part of the act so that the only effect of the payments of taxes for seven successive years shall be that the taxpayer will obtain a possession which must be repeated seven times in the same manner before any title by constructive possession can accrue to him? Or are we to read the act so that the last part of it only makes it a condition to a constructive possession for each year that the taxpayer shall have paid taxes for seven successive years? In other words, it is not the true construction of the act to say that the last part of it deprives the taxpayer of the effect of a possession for each year unless the taxes are paid by him for seven successive years, and no more? The majority of the court favor the latter construction, as being a correct construction of the language employed by the General Assembly. When the Legislature said that, as to the taxpayer under color of title who paid taxes on unimproved and uninclosed land, such payment should legally constitute possession of such land, it is not reasonable to suppose that they meant anything different from what they declared, merely because they afterwards said that this legal effect each year should be taken away if there were not at least seven successive yearly payments, three of which must occur after the enactment of the law. That construction is consonant with the terms of the act, and it avoids the injustice of making seven years' payment of taxes amount, as to wild lands, to no more than a single act of trespass under the provision governing limitations in actions for the recovery of real estate. For it is the settled doctrine of this court that a trespass can start the running of that provision. Ferguson v. Peden, 33 Ark. 150; Logan v. Jelks, 34 Ark. 547; Organ v. Memphis & L. R. Railroad Company, 51 Ark. 235, 270, 11 S.W. 96.

The construction we disapprove, when carried to its legitimate conclusion, would require seven years' successive payments of taxes and seven additional years of actual possession, or seven times seven years,--that is forty-nine successive years'--payments of taxes under the act, in order to create title by adverse possession. This we think unreasonable.

Moreover, that part of the act, which we have, for convenience of discussion, called the last part of the act, and which begins with the word "but," is, we think, in the nature of an exception or proviso or limiting clause to the general provision which precedes it. 1 Words & Phrases, p. 926; 5 Am. & Eng. Enc. (2d Ed.), 79; 6 Cyc. p. 261; Leggett v. Firth, 132 N.Y. 7, 11, 29 N.E. 950. And, as, according to a well-settled rule of construction, "when the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms" (McRae v. Holcomb, 46 Ark. 306, 310), even if there were doubt regarding the effect of that part of the act, it would have to be resolved in favor of that construction which we have adopted. See also Minis v. United States, 40 U.S. 423, 15 Peters 423, 445, 10 L.Ed. 791; Gould v. New York Life Insurance Co., 132 F. 927.

If there is any good policy in encouraging the payment of taxes upon unimproved and uninclosed lands, and we think there is, then this act, which does not countenance fraud or imposition, ought not to be deprived of its effect by any narrow or unreasonable construction. Nor can we find any objections to the act because it requires owners of unimproved and uninclosed land to see to it that the taxes thereon are properly paid.

But it is contended that the act should be construced so as not to be retrospective, and that to give it the construction contended for by appellee would be to deprive the appellant of vested rights. As the act expressly provides that, as to instances occurring before the enactment of the law, taxes paid for four successive years, in addition to payments for taxes occurring at least three more years after its date, shall be determinative, it follows that the act is in plain terms retroactive as to the four years. And as a reasonable time was allowed, after the act was passed, in which an interested party could prevent the consequences of the act...