Walker v. Sorenson
| Citation | 64 S.D. 143,265 N.W. 589 |
| Decision Date | 07 March 1936 |
| Docket Number | 7868 |
| Parties | THOMAS R. WALKER, Appellant, v. NIELS SORENSON, et al., Respondents. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Clay County, SD
#7868—Affirmed
Irwin R. Frickson, Vermillion, SD
Danforth & Davenport, Sioux Falls, SD
Attorneys for Appellant.
Payne & Olson, Vermillion, SD
Attorneys for Respondents.
Opinion Filed Mar 7, 1936
Plaintiff brought this action to quiet title to certain lands located along the Missouri River in Clay County. The land in dispute has had a history. Originally this land was a part of the state of Nebraska. About 1894 the Missouri River changed its course and located this land on the South Dakota side of the river. Thereafter, by joint action of Nebraska and South Dakota, the land became a part of Clay County. About 1912 the river commenced cutting into this land and finally cut away all of the tract. Just when the land was finally washed away is not entirely clear from the record. Some of the testimony placed the disappearance of this land as early as 1914, while others testified that the land was cut away in 1918. Later the river again changed its course, and the land was restored. The testimony regarding the time the land was restored is also in dispute.
Plaintiff’s claim to the land is based upon substantially the following state of facts: In 1911, plaintiff received a deed to this land from one Helen Austin Whittemore, who was the only heir of one Rachel Austin. Rachel Austin died in 1904 and this disputed land was included in the probate proceedings in the Rachel Austin estate. The final decree entered by the county court in that estate in 1909 set this land over to Mrs. Whittemore. Rachel Austin was the wife of H.J. Austin, who had title to a considerable amount of land in the immediate vicinity of this land in dispute and who died in 1891. Prior to the death of H.J. Austin, he had deeded all of this real property to his wife, but H.J. Austin never had any record title to this land in dispute, and this land was not included in the land which he had deeded to his wife before his death. Mrs. Austin, Mrs. Whittemore, and the plaintiff paid the taxes on this land in dispute for the years 1902 to 1914, inclusive. The land was not assessed for taxes in Clay county prior to 1902, and it was not assessed for taxes after 1914, nor has it been assessed since it was restored by the river. It is the contention of the plaintiff that since 1891, he, Mrs. Whittemore. and Mrs. Austin have been in actual possession of this land, upon which contention, together with the facts above recited, he bases his claim of title.
The defendant Sorenson claims title to this land upon substantially the following facts: Sorenson has title to the eighty acres of land directly north of the forty acres here in dispute. Sorenson received the title to this land from one Powell in 1912. Powell had received his title from one Egan in 1905. Egan and his father had owned the land since 1894. Sorenson maintains that at each transfer of this eighty acres, it was understood and agreed that the forty acres here in dispute, together with the possession thereof, were surrendered and passed to the new owner. It is Sorenson’s claim that the Egans, Powell, and himself have been in the actual and exclusive possession of this land since 1894, and that there was a privity between these successive possessors which caused their possession to ripen into title.
The trial court found the facts as follows:
“That Rachel R. Austin paid the taxes on said Northwest Quarter of the Northeast Quarter of said Section Twenty-three (23), in Township Thirty-two (32) North, of Range Four (4) East of the Sixth Principal Meridian for the years 1902 to 1908, both inclusive, but during that time she was not in possession thereof, nor did she have any color of title thereto. That Helen Pickett Austin Whittemore paid the taxes for the year 1909-1910, but she did not have any possession of the premises at the time. That the plaintiff paid the taxes for the years 1911 to 1914, both inclusive, but during that time he was not in the possession thereof.
“4. That for many years prior to 1905 either James Egan or his son, Edward M. Egan, his successor in interest, owned the West Half of the Southeast Quarter of Section Fourteen (14), in Township Thirty-two (32') North, of Range Four (4) East of the Sixth Principal Meridian in Clay County, South Dakota, same being immediately north of the Northwest Quarter of the Northeast Quarter of Section Twenty-three (23), in said Township and Range, and lived on same. That while they lived there, particularly from the year 1894, they were in possession of the Northwest Quarter of the Northeast Quarter of Section Twenty-three (23) in said Township and Range, the land in question, together with all the lands south thereof to the Missouri River. They kept same enclosed with fences running on the east side and on the west side to the Missouri River, and pastured the same, and made ordinary use of the same. That in April, 1905, the said Edward M. Egan transferred the said West Half of the Southwest Quarter of Section Fourteen (14), said Township and Range, to one Benjamin Powell, and at the same time surrendered possession of the Northwest Quarter of the Northeast Quarter of said Section Twenty- three (23) to the said Benjamin Powell. That said Benjamin Powell continued in the possession thereof, and protected the same, and used the same in the same manner until in April, 1912, when he transferred his interest in the lands to Niels Sorenson, defendant herein. That the said, James Egan and said Edward M. Egan and said Benjamin Powell, while in such possession, kept the land protected with a substantial enclosure, and used same for pasture, and cut wood thereon, and cultivated and improved the same and claimed to be the owners thereof. In each instance when a transfer was made of the lands north thereof it was stated and understood that the Northwest Quarter of the Northeast Quarter of Section Twenty-three (23), in Township Thirty-two (32) North, of Range Four (4), East of the Sixth Principal Meridian, together with the possession thereof, was surrendered and passed to the new owner.
Finding of fact No. 5 finds that Sorenson has been in the actual and exclusive possession of...
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