60 Minn. 100 | Minn. | 1895
This action was commenced in March, 1893, to recover possession, and damages for the detention, of a strip of land 100 feet in width, across a 40-acre tract, and of certain lots abutting said strip, all embraced within the limits of the plat of the village of Fountain, in Fillmore county. An examination of the record and the briefs of counsel satisfy us that the determination of the case depends upon the single question whether the defendant had, before the commencement of the action, acquired title to the premises by adverse possession. There is practically no conflict in the evidence. It appears that in June, 1870, the plaintiff being the owner of one undivided half, and Wyckoff and Holley being the owners of the other undivided half, of the tract referred to, they all joined in platting it as the village of Fountain. Upon this plat there was laid out the 100-feet strip now in dispute, running diagonally through the tract, having no designation as to the purpose
The line of argument adopted by defendant’s counsel may be summarized as follows: A license being a personal privilege, and not assignable or transferable, the license from plaintiff to the Southern Minnesota Railroad Company was terminated or extinguished by the transfer of the right of the latter to the Southern Minnesota Railway Company under the foreclosure sale in February, 1877, and therefore the possession of the Southern Minnesota Railway Company and its successor, the defendant, was adverse to plaintiff, so as to set the statute of limitations running February, 1877. The premise is unquestionably correct, but the fallacy consists in assuming that a transfer of the right of a licensee ipso facto renders the possession of the transferee adverse to the licensor. Possession by the transferee after the license has been thus terminated may become adverse, but not necessarily so. That will depend on circumstances. The rule is that where the entry is permissive the statute will not begin to run against the legal owner until an adverse holding is declared, and notice of such change is brought to the knowledge of the owner. The possession of the owner cannot be disturbed by the adverse act of a licensee, any more than of a lessee. In both cases his possession is the possession of the owner, and his grantee or assignee but steps into his shoes, and takes cum onere. While an attempted transfer of the right of the licensee terminates the license, and the licensor has the right to treat the transferee as a trespasser, yet it is optional “with him to do so, or to continue or renew the license. -His acquiescence in the possession of the transferee, without interference or prohibition, may be such as to be regarded as amounting to a continuance or renewal of the
The contention that the claim of the plaintiff is barred by the six-years limitation proceeds upon the theory that his only remedy was to bring an action to recover compensation for the land taken. This is not in accordance with the doctrine of this court. Lamm v. Chicago, St. P., M. & O. Ry. Co., 45 Minn. 71, 47 N. W. 455; Watson v. Chicago, M. & St. P. Ry. Co., 46 Minn. 321, 48 N. W. 1129; Kremer v. Chicago, M. & St. P. Ry. Co., 51 Minn. 15, 52 N. W. 977; Minneapolis Mill Co. v. Minneapolis & St. L. Ry. Co., 51 Minn. 304, 53 N. W. 639.
Conceding that the 'Southern Minnesota Bailway Company was entitled to the. privilege of buying the land, yet, if it failed to do so, the plaintiff had the right to revoke the license, and sue to recover possession.
Undoubtedly a person may, short of the statutory limitation, be estopped by his own laches from asserting his title; but the facts of this case fall very far short of containing the essential elements of an equitable estoppel. Nothing was ever done on the premises by either the defendant or its predecessors on the faith of apparent title derived from the plaintiff, for the record title always remained in him. All the improvements on the land were made by the original licensee shortly after the license was given, except such as were made by the defendant after' plaintiff had asserted his rights, in 1884. There are some circumstances in the case which 'perhaps tend to create a suspicion that possibly it may have been the original intention of the owners of this land to donate it to the' railway
Counsel contend that if it is to be presumed that defendant is rightfully in possession of the other undivided half of the premises, under Wyckoff and Holley, then it and plaintiff are tenants in common, and therefore ejectment will not lie, because there is no evidence that plaintiff has been ousted by defendant. Assuming that the suggested presumption obtains, yet the facts that plaintiff demanded that defendant purchase and pay for his half of the premises, and that defendant refused or failed to do so, but retained exclusive possession, denying plaintiff’s title, and asserting title in itself, was such an assertion of a hostile claim and usurpation of the entire premses by defendant as to constitute an ouster of the plaintiff.
This covers everything of substance in defendant’s assignment of errors, and the result is that the order appealed from must be affirmed.