Trask v. Success Mining Co.

• Decision Date: 04 February 1916
• Citation: 155 P. 288,28 Idaho 483
• Parties: ESTELLE TRASK and GEORGE R. TRASK, Husband and Wife, Respondents, v. SUCCESS MINING COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

155 P. 288

28 Idaho 483

ESTELLE TRASK and GEORGE R. TRASK, Husband and Wife, Respondents, v. SUCCESS MINING COMPANY, a Corporation, Appellant

Supreme Court of Idaho

February 4, 1916

TITLE BY ADVERSE POSSESSION-INSTRUCTIONS-STATUTORY CONSTRUCTION-ADVERSE POSSESSION-WHAT CONSTITUTES-IMPROVEMENTS-EVIDENCE.

1. Where one conveys title to land by deed, the legal title vests in the grantee, and if the grantor continues in possession afterward, his possession will either be that of tenant or trustee of the grantee, and he will be regarded as holding the premises in subserviency to the grantee, and nothing short of an explicit disclaimer of such relation and a notorious claim of right in himself will be sufficient to change the character of its possession and render it adverse to the grantee.

2. If the acts of the adverse claimant in regard to the land so conveyed were sufficient to give the grantee notice that the defendant was claiming title thereto adversely to the grantee, that is sufficient. Either constructive or actual notice is sufficient.

3. Held, that the court did not err in giving instructions 3 and 7.

4. Held, that the court erred in giving instruction No. 5 and in refusing to give requested instruction No. 7a.

5. It is provided, among other things, by sec. 4043, Rev. Codes that for the purpose of constituting adverse possession by a person claiming title not founded upon a written instrument judgment or decree, land is deemed to have been possessed and occupied, first where it has been protected by a substantial inclosure, and, second, where it has been usually cultivated or improved.

[As to acts equivalent to notice of adverse possession, see note in 28 Am.St. 159.]

6. The requirement of that statute that the land be "usually cultivated or improved" means that it should be cultivated or improved in the manner and to the extent usual in the case of similar property, and in case of a mill site used for ordinary mining purposes, it is not necessary that it be either cultivated or inclosed.

7. The word "improved" as used in said section means to change or make better or to adapt it more to the purposes for which it is intended than had previously been done.

8. Held, that the court erred in rejecting certain offered testimony.

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. Wm. W. Woods, Judge.

Action in ejectment to recover a portion of a mill site situated in Placer Center Mining District, Shoshone county, and to recover for withholding the same and for the rental thereof. Judgment for plaintiffs. Reversed.

Judgment reversed and cause remanded. Costs awarded to the appellant.

A. H Featherstone and W. W. Bixby, for Appellant.

The plain and palpable meaning of instruction No. 3 is that (1) defendant's possession and claim must not only have been such as to impute notice to plaintiff of defendant's claim of title, but (2) that defendant must have given actual notice of its claim of title. All that the law requires is notice, and in no case does the law require both kinds. Either is sufficient in the case of the grantor claiming adversely to the grantee. (Lord v. Sawyer, 57 Cal. 65; 3 Washburn on Real Property, 88; Dorland v. Magilton, 47 Cal. 485; Franklin v. Dorland, 28 Cal. 175, 87 Am. Dec. 111; Hartman v. Reed, 50 Cal. 485; Mannix v. Riordan, 75 A.D. 135, 77 N.Y.S. 357; Sherman v. Kane, 86 N.Y. 57; Dickey v. Forrester (Tex. Civ.), 148 S.W. 1181.)

The relation of grantor may be denied by retaining actual possession and exercising acts of control and dominion over the property, consistent only with a claim of exclusive ownership and of adverse right, and hostile to the title of the grantee. (Knight v. Knight, 178 Ill. 553, 53 N.E. 306; Folley v. Thomas, 46 Ind.App. 559, 93 N.E. 181; Batz v. Woerpel, 113 Wis. 442, 89 N.W. 516.)

As to what "improvement" means under sec. 4043, Rev. Codes, see Gray v. Walker, 157 Cal. 381, 108 P. 278; Daniels v. Gualala Mill Co., 77 Cal. 300, 19 P. 519.

The word "improve" means "to make better," "to increase the value or good qualities of." (Dougherty v. Taylor etc. Co., 5 Ga.App. 773, 63 S.E. 928; Brown v. Brown, 18 Idaho 345, 110 P. 269; Meyer v. City Street Imp. Co., 164 Cal. 645, 130 P. 215; A. Leschen & Sons Rope Co. v. Moser (Tex. Civ.), 159 S.W. 1018.)

Franklin Pfirman, for Respondents.

The jury was told by instruction No. 7 that notice need not be actual, and appellant's argument, based on the assumption that instruction No. 3 called for actual notice, falls to the ground. The instruction criticised states the law correctly. (1 Cyc. 1039; Cyc. Ann. for 1913, p. 70.)

A clear, positive and continued disclaimer and disavowal of the title, and assertion of an adverse right, to be brought home to the party, are indispensable before any foundation can be laid for the operation of the statute. (Zeller v. Eckert, 4 How. (45 U.S.) 289, 11 L.Ed. 979; Fountain v. Lewiston Nat. Bank, 11 Idaho 451, 469, 83 P. 505; Brown v. Brown, 18 Idaho 345, 110 P. 269.)

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an action in ejectment to recover possession of about one-eighth of an acre of land, it being a part of the original Granite State mill site, situated in Placer Center Mining District, Shoshone county, and also to recover the sum of $ 500 damages for the alleged withholding of said premises, and also for the sum of $ 600, the alleged value of the rents, issues and profits of said tract of land.

The defendant denies the material allegations of the complaint and as a further answer pleads that this action is barred by the provisions of secs. 4036 and 4037, Rev. Codes, and pleads title to said tract of land by adverse possession.

The cause was tried by the court with a jury and the jury found by its verdict that the plaintiff Estelle Trask was the owner in fee simple of said premises, and assessed her damages in the sum of one dollar, and judgment was entered on said verdict. This appeal is from the judgment.

Several errors are assigned, going to the action of the court in giving certain instructions and refusing to give others, and also in admitting and refusing to admit certain evidence offered on the trial.

The first error assigned is that the court erred in giving instruction No. 3 offered by the plaintiff. That part of said instruction particularly objected to is as follows:

" . . . . unless you believe from the evidence that the defendant made an explicit disclaimer of any holding under said plaintiff and made a notorious assertion of right in itself. Nothing less than such an explicit disclaimer and notorious assertion of right by the defendant will be enough to change the character of defendant's possession and to make its holding adverse to the plaintiff Estelle Trask."

Counsel contends that the plain and palpable meaning of that instruction is, first, that the defendant's possession and claim must not only have been such as to impute notice to plaintiff of defendant's claim of title, but that defendant must have given actual notice of its claim of title, and argues that all that the law requires in such a case as the one at bar is notice, and that in no case does the law require both kinds of notice; that either is sufficient in the case of the grantor claiming adversely to the grantee.

We do not think counsel's construction of the meaning of that instruction is borne out by the language used therein. In 1 Cyc., at p. 1039, the author discusses the character of possession as affected by relationship or situation of parties toward each other, and states the rule as follows:

"By the execution and delivery of a deed of land the entire legal title in the premises vests in the grantee, and if the grantor continues in possession afterward his possession will be that either of tenant or trustee of the grantee. He will be regarded as holding the premises in subserviency to the grantee, and nothing short of an explicit disclaimer of such relation and a notorious assertion of right in himself will be sufficient to change the character of his possession and render it adverse to the grantee."

The author there cites a great number of authorities from many different states in support of the rule there laid down.

In the case at bar, the Success Mining Company, the defendant, had conveyed this identical real estate to the plaintiff, and that being true, if it remained in possession of the land conveyed, or a part of it, under the rule above stated, it will be regarded as holding the premises in subserviency to the grantee, and nothing short of an explicit disclaimer of such relation or a notorious assertion of right in itself would be sufficient to change the character of its possession and render it adverse to the grantee. By holding that an explicit disclaimer or a notorious assertion of right is necessary, we do not mean to hold that defendant's possession and claim must not only have been such as to impute notice, but in addition to that the defendant must have given actual notice of its claim of title. Either is sufficient. If the acts of defendant in regard to said property were sufficient to give the plaintiff notice that the defendant was claiming title to said property adversely to the plaintiff, that is sufficient. We do not think that counsel's construction of the meaning of said instruction is borne out by the language therein used.

This rule seems to be supported by the decided weight of authority, as indicated by 1 Cyc., p. 1039, and cases there cited, and 1913 Cyc. Ann., p. 71. The court therefore did not err in giving said instruction.

The next contention of appellant is that said instruction No. 3 conflicts with instruction No. 7 requested by the plaintiff...