Turner v. Stephenson

Decision Date28 November 1888
CourtMichigan Supreme Court
PartiesTURNER v. STEPHENSON.

Appeal from circuit court, Grand Traverse county; J. G. RAMSDELL Judge.

Ejectment by James M. Turner against Frederick H. Stephenson. Judgment for defendant, and plaintiff appeals.

MORSE J.

Action of ejectment. The land in controversy, the S. 1/2 of the N.E fractional 1/4 of section No. 4, township 25 N., of range 11 W., and being 80 acres, belongs to the lands granted to the state under the swamp-land act of 1850. It was patented to the state in that year. In 1872 the state issued a patent under which, by mesne conveyances, the plaintiff claims title. The defendant, under the homestead law, located 160 acres, described in his patent as the N.E. 1/4 of section No 4, same town and range as the state patent to Turner. It will be seen that the 160 acres located by defendant as a homestead included the 80 acres claimed by Turner, and conveyed to his grantors by the state. It was conceded that Turner had the better title of record, and must recover unless the defendant could avoid the same by showing adverse possession. Defendant actually entered into possession of his homestead in October, 1863, which possession has been continuous and uninterrupted since that time. But he lived and made his improvements almost entirely upon the north-west 40 acres. There was evidence tending to show that he made some clearing or chopping quite early upon some small portion of the south-west 40, which Turner claims, and he testified that in the last three years he has chopped about 10 acres upon it, and cleared 6 of the 10. Also, that he paid taxes upon the whole 160, nearly, if not all of, the years since it became taxable, and has used the south-west 40 as a wood lot, and pastured his cattle thereon.

The circuit judge, as we think, erroneously instructed the jury that "the occupancy of the north-west quarter of the premises under a patent claiming the whole, and registered, was possession of the entire 160 acres. Therefore, if you find from the evidence that the defendant in this case has occupied that portion of the premises for the whole period, consecutively, of twenty years, adversely, openly, notoriously, and in defiance of the rights of the plaintiff, or the rights of any other parties, then he is entitled, under the law, to the premises, and your verdict will be for the defendant." The question as to the payment of taxes, or the use or improvement of the land claimed by Turner, or any portion of the same, was by this direction eliminated from the case, and it is therefore unnecessary to determine what bearing such facts, if established, might have upon the question of title to the same in the defendant by adverse possession. The jury were clearly informed that, if the defendant had occupied the north-west 40 alone, for the requisite number of years, adversely to all the world, and under a recorded deed to the whole 160 acres, it was not necessary that anything should have been done upon the 80 acres claimed by plaintiff, or towards it, in order to hold it by adverse possession. We cannot see how a man, by simply occupying his own land, the title to which is not disputed, can acquire title to another's land, simply because the deed to the land he occupies covers adjoining land, which he neither owns nor occupies. If so, then the mere recording of a deed would amount constructively to actual possession. The plaintiff in this case, or any other person, is not bound to suppose that a man occupying adjoining land to his own is thereby claiming title to or possession of his premises. The cases cited by the counsel for defendant are hardly applicable to the case at bar. They are cases, as far as cited from this state, where there had been acts of user going further than the mere record of title. The 80 acres claimed by plaintiff, and the 80 acres upon the west 40 of which the defendant made his occupation, are distinct tracts of land, and so regarded by the general government, the source of the original title. These authorities might have some application to the proofs as made by the defendant on the trial, but they do not support the charge of the court, upon which, it must be presumed, the jury acted. Murray v. Hudson, 32 N.W. 891; Youngs v. Cunningham, 57 Mich. 153, 23 N.W. 626; Hardy v. Powell, 40 Mich. 415; Campau v. Campau, 44 Mich. 33, 5 N.W. 1062. Fletcher

v.

Fuller, 7 S.Ct. 677; Public Schools

v.

Risley's Heirs, 40 Mo. 370; Davis

v.

Easley, 13 Ill. 201; Whitford

v.

Drexel, 9 N.E. 268; Fussel

v.

Hughes, 8 F. 396; Murphy

v.

Doyle, (Minn.) 33 N.W. 220. In Murray

v.

Hudson, supra, the parcel of land in issue had been used by Bryce, and those claiming under him, as a wood lot appurtenant to a farm, in the usual and ordinary way pertaining to ownership of farm lands; and this possession, being adverse for a sufficient length of time, was held a good defense to the original title. The other cases cited in this state are not analogous in their facts to the case under consideration. In the case of Murphy

v.

Doyle, 33 N.W. 220, the defendant acquired a tax deed to an 80-acre tract of land. The land was vacant and unimproved, and was all heavy timber, except about eight acres of marsh. Claiming title to the whole tract under his tax title, Doyle entered upon the premises, and cleared and...

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  • Turner v. Stephenson
    • United States
    • Michigan Supreme Court
    • November 28, 1888
    ...72 Mich. 40940 N.W. 735TURNERv.STEPHENSON.Supreme Court of Michigan.November 28, Appeal from circuit court, Grand Traverse county; J. G. RAMSDELL, Judge. Ejectment by James M. Turner against Frederick H. Stephenson. Judgment for defendant, and plaintiff appeals. [40 N.W. 736] Frank E. Robso......

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