Worthley v. Burbanks

• Decision Date: 12 January 1897
• Citation: 45 N.E. 779,146 Ind. 534
• Parties: WORTHLEY v. BURBANKS et al.
• Court: Indiana Supreme Court

146 Ind. 534

45 N.E. 779

WORTHLEY

v.BURBANKS et al.

Supreme Court of Indiana.

Jan. 12, 1897.

Appeal from circuit court, Porter county; John H. Gillett, Judge.

Action by Catharine L. Worthley against John A. Burbanks and others. There was a judgment for defendants, and plaintiff appeals. Reversed.E. D. Crumpacker and Collins & Collins, for appellant. J. W. Youche, for appellees.

HACKNEY, J.

The appellant sued to quiet her title to an 80-acre tract of land in Lake county, and the appellee Burbanks, by cross complaint, sought to quiet the title thereto in himself. On change of venue from the Lake circuit court, the cause was tried and a special verdict rendered in the Porter circuit court. The appellant and the appellee each moved for a judgment upon the special verdict, and the motion of the latter was sustained, and that of the former was overruled. These rulings present the only question assigned as error in this court.

The facts found disclose: That the appellee, in October, 1857, became the owner of the legal title to said lands. That his deed was properly recorded in January, 1858; that he never conveyed or transferred his said title. That he was not, and has not since been, a resident of Lake county. That he did not see said lands, excepting in the years 1858, 1880, and 1891, when, during each of said first two years, he visited said lands once, and in the last of said years he built a small frame house thereon. That said lands were wild, uncultivated, and unimproved, and were never in his actual possession or occupancy prior to June, 1891. That for the years 1859 and 1860 said lands were subject to taxation in said county, and were assessed in the name of said Burbanks, but neither said taxes, nor any taxes thereafter assessed, were ever paid by him. For the years named said taxes became delinquent, and in January, 1861, said lands were sold therefor, by the treasurer of said county, at public sale, and were purchased by one Dibble, who received a deed therefor in 1864; said lands never having been redeemed from said sale. Dibble sold to Arvida Worthley in March, 1868; Arvida Worthley conveyed to one Rose in January, 1873; and Rose, on the same day, conveyed to the appellant. The deeds of said several conveyances were duly entered for record in Lake county near the dates of their execution, and since June 16, 1869, said lands have been entered for taxation against said Arvida Worthley and this appellant. The taxes on said lands from the year 1859 until 1892 were paid by said several grantees, Dibble, Worthley, and the appellant; and in the year 1890 she paid the sum of $17.25 assessed in her name against said lands for a public ditch then constructed. Said lands are located about two miles from the village of Tolleston, and have ever been “barren sand ridges and hills, interspersed with a few sloughs. That said sand ridges contained no soil, and were wholly unproductive and unfit for any kind of cultivation, and wholly unfit to be used for farming or gardening purposes, or for any other useful purpose whatever. That the sloughs on said land produced nothing but a coarse kind of grass in small quantities, which were utterly worthless and unfit for any purpose, and had no market value, either in the vicinity of the land or anywhere else. That said land was, *** and has been, continuously, *** incapable of producing any kind of crop or yielding anything of value whatever.” That, when Dibble obtained his tax deed, he went upon said land, and cut off timber of any value, and removed the same, since which time said lands have been “covered in a large part by small brush and small scruboak trees,” of no value for any purpose. That said lands have never possessed any value for, and have not been adapted to, “residence purposes, or platting or subdividing, or to any other useful purpose,” “Said Arvida Worthley, in the summer of 1868, entered upon said land, claiming to own the same, and caused said land to be surveyed, and chopped and grubbed the brush out along the line thereof all the way around said tract, and caused stakes to be driven at the corners, and some places along the line, for the purpose of marking the line of said land,” all of which remained visible to the common observer for four years. That in the year 1869 the said Arvida Worthley frequently visited said land, and went upon the same, and openly and notoriously claimed to be the owner thereof, and gave permission to a resident in the vicinity of said lands to cut a small quantity of coarse slough grass thereon. That in the year 1870 said Arvida Worthley visited and went upon said land frequently, still claiming the ownership thereof, and during said year, he grubbed and cleared about a half acre of said land, and inclosed the same with a brush fence; but the soil upon said land was so barren and poor that he did not plant any crop thereon, but, during said year, he planted a small patch of cranberry vines in a marsh or slough on said land. In each of the years 1871 and 1872 he went upon said land several times, and openly and notoriously claimed to own the same, and gathered small quantities of cranberries therefrom. In January, 1873, when said land was conveyed to the appellant, and when she and her husband, said Arvida, moved to Michigan City, from Tolleston, where they had theretofore resided, she (this appellant) put William L. Worthley, her son, in charge of said lands, and authorized him to look after and care for the same. That from said date, each year until and including 1878, said son visited said lands three or four times, at each visit going upon and over said lands, claiming at all times, openly and notoriously, that the appellant owned said lands, and during the same period, and at all times thereafter, she claimed, openly and notoriously, to own said lands. That in 1878, when her said son moved to a Western state, she employed one Gibson, a resident of Tolleston, and authorized him to look after and take care of said land for her, and from that time to the time of the trial he went upon said lands several times each year, for the purpose of looking after the same, and at all times during said period he did openly and notoriously claim and declare that the appellant was the owner of said lands, and that he, as her agent, was in charge thereof. That the said Arvida Worthley, from the time he purchased from Dibble until January, 1873, and this appellant, from January, 1873, to the time of the trial, continuously, openly, and notoriously claimed to own said lands, and in like manner exercised all such acts of dominion, control, and ownership over the same, as fully and completely as other owners of like lands exercised respecting the same, and that they did severally, during said periods, respectively, exercise such dominion, control, and ownership over said lands as could be exercised, in view of the condition, character, and adaptability of said lands, all of which was open, notorious, and visible, and to the exclusion of every other person. That Burbanks never inquired as to the ownership of said land from 1858 to 1891, and, if he had made such inquiry in the vicinity of said land, he could easily have ascertained, at any time from 1868 to the time he commenced this suit, that the said Arvida Worthley and this appellant claimed to own the land.

The question presented in this court is as to whether the facts so specially returned by the jury disclosed such adverse possession, by and in favor of the appellant, as to preclude the reassertion by the appellee of his title acquired in 1857. In this state the statute of limitations (Rev. St. 1894, § 294; Rev. St. 1881, § 293) denies a right of action for the recovery of real estate after 20 years from the accrual of the cause of action; and this is the provision upon which the holder of lands in adverse possession for the term of 20 years is held to be the owner. The able counsel for the parties agree that, ordinarily, there are five indispensable elements in this adverse possession, namely: (1) It must be hostile, and under a claim of right; (2) it must be actual; (3) it must be open and notorious; (4) it must be exclusive; and (5) it must be continuous. In this agreement counsel are supported by the authorities. Ward v. Cochran, 150 U. S. 606, 14 Sup. Ct. 230;Murray v. Hoyle, 97 Ala. 588, 11 South. 797;Ringo v. Woodruff, 43 Ark. 469;Oneto v. Restano, 78 Cal. 374, 20 Pac. 743;Noyes v. Heffernan, 153 Ill. 339, 38 N. E. 571;Hempsted v. Huffman, 84 Iowa, 398, 51 N. W. 17;Gildehaus v. Whiting, 39 Kan. 706, 18 Pac. 916;Haffendorfer v. Gault, 84 Ky. 124; Inhabitants of School Dist. v. Benson, 31 Me. 381;Beatty v. Mason, 30 Md. 409;Middlesex Co. v. Lane, 149 Mass. 101, 21 N. E. 228;Paldi v. Paldi, 95 Mich. 410, 54 N. W. 903;Lantry v. Parker, 37 Neb. 353, 55 N. W. 962; Foulke v. Bond, 41 N. J. Law, 545; Law v. Smith, 4 Ind. 56;Peterson v. McCullough, 50 Ind. 35;McEntire v. Brown, 28 Ind. 347;Richwine v. Presbyterian Church, 135 Ind. 80, 34 N. E. 737;Silver Creek Cement Corp. v. Union Lime & Cement Co., 138 Ind. 297, 35 N. E. 125, and 37 N. E. 721;Dyer v. Eldridge, 136 Ind. 654, 36 N. E. 522;Roots v. Beck, 109 Ind. 472, 9 N. E. 698; 1 Am. & Eng. Enc. Law (2d Ed.) p. 795. There is no question but that the appellant held for the required period the color of title to said lands, and that if she occupied or possessed, as required by the rule in adverse possession, any part of the land, such possession will, under such color of title, be held constructively to include the whole of such lands. Hargis v. Inhabitants of Congressional Tp., 29 Ind. 70; Railroad Co. v. Oyler, 60 Ind. 383;State v. Bank, 106 Ind. 461, 7 N. E. 379;Roots v. Beck, 109 Ind. 472, 9 N. E. 698;City of Noblesville v. Lake Erie & W. R. Co., 130 Ind. 1, 29 N. E. 484;Herff v. Griggs 121 Ind....