57 P. 322 | Or. | 1899
Lead Opinion
delivered.the opinion of the court.
This is an action to recover one hundred and sixty acres of land in Coos County, commenced in September, 1895. The defendants claim title by adverse possession. Upon the trial, and after the evidence was all in, by direction of the court the jury returned a verdict in favor of plaintiffs, on the ground that the defendants had not proved a defense sufficient to be submitted to them; and from the judgment entered thereon the defendants appeal.
The land in controversy was granted to the State of Oregon by act of congress, March 12, 1860, as swamp and overflowed land, and conveyed by the state to the plaintiffs’ ancestor on November 9, 1886, although not patented to it by the general government until March 8, 1891. In March or April, 1884, but after the land had been selected and claimed by the state as swamp land, the defendant settled upon it with the purpose of acquiring title under the laws of the United States, claiming that it was not in fact swamp land, but vacant public land, subject to entry under the pre-emption and homestead laws. He thereafter attempted to make a preemption filing thereon, but was unable to do so because it had been claimed by the state as swamp land, and withdrawn from settlement on that account; and a sub
The contention for the plaintiffs is that, under these circumstances the defendant’s entry and possession of the land was not adverse, within the meaning of the statute of limitations, and in this position we concur. The evidence shows that he entered upon the land under the mistaken claim that it was vacant public land of the United States, with the expectation of obtaining title from the government, and that he did not enter or hold possession under any claim of title in himself. It is true he testifies that he claimed the land as his own, but on cross-examination states — what is borne out by his entire course of conduct — that such claim was based on the theory that the land belonged to the government of the United States, and that by reason of his settlement and cultivation he was entitled to acquire the title. His contention was simply that the land was open to settlement, and he had the right to acquire it under the laws governing its disposition. To that end he attempted to file a pre-emption claim, and afterwards to make a homestead entry, but was unable to make either. He was, in short, nothing more than a mere squatter occupying land which he believed to be a part of the public domain, with the purpose of acquiring title from the government, if it should be determined in the then pending contest not to be swamp land, and this does not amount to an adverse holding: Schleicher v. Gatlin, 85 Tex. 270 (20 S. W. 120).
It is an indispensable requisite to an adverse possession
From these authorities it is apparent that, to render a possession of real property adverse so as to vest the title in the occupant, and bar a recovery by the owner, it is an essential requisite that such possession be under a claim of title hostile to the true owner ; and this is the doctrine of the previous decisions of this court, as we understand them. In Swift v. Mulkey, 17 Or. at p. 538 (21 Pac. 872), it is said: “To be adverse possession, it must be under a claim of ownership, though it need not be under color of title. It is sufficient if the party goes upon the land, and declares to the world by his acts and conduct that he is the owner of it, and maintains that attitude the requisite period.” And again in Springer v. Young, 14 Or. at p. 285 (12 Pac. 404), Mr. Justice Strahan, speaking for the court, says : “So, also, if at the time one enters, or afterwards, he does not claim the title himself, but acknowledges the title of another, his possession must be taken as an entry or holding in subordination to the title of the person whose right he acknowledges.” So, also, in Hicklin v. McClear, 18 Or. at p. 138 (22 Pac. 1061), it is said : “In order to establish that fact [adverse possession] it must appear that the appellant, and those under whom he claims, were, during that time, in the visible, notorious, and exclusive possession, under a claim of ownership. The possession must have been of such a character as to afford the respondent the means of knowing it, and of the claim.”
The California authorities (Hayes v. Martin, 45 Cal.
Where the effect of the statute of limitations is not to transfer the fee to land from the true owner to the occupier, but only to destroy his remedy for its recovery by action, there may be some reason for holding that a possession which is adverse as against the plaintiff is sufficient to bar the action; but where, as in this state, an adverse possession of real property for the period prescribed by the statute vests a perfect title in the possessor as against the whole world, and gives him all the remedies incident to the possession and ownership under a written title (Parker v. Metzger, 12 Or. 407, 7 Pac. 518), it seems to us no other reasonable conclusion can be reached than that such possession must be under a claim of title in the occupant, and with an intention to hold it against all the world. Within this rule the defendant’s occupancy was manifestly insufficient. As already pointed out, he never at any time claimed title in himself, but always admitted the title to be in the United States, and sought to enter such land under the preemption and homestead laws. It was for the purpose of thus acquiring the title that he made his settlement and retained possession, all the time admitting that the title was not in him. It follows from these views that, assum
Affirmed .
Rehearing
On Motion for Rehearing.
The questions in this case having been thoroughly and exhaustively re-examined in the recent case of Altschul v. O’Neill, 35 Or. 202 (58 Pac. 95), and the conclusion there reached being in harmony with the opinion heretofore rendered in this case, the petition for rehearing is denied. Rehearing Denied.