39 Iowa 502 | Iowa | 1874
There is no controversy but that the plaintiff’s first husband entered the land sued for, and that by his death,, ánd the subsequent death of their issue, she became the owner’ in fee of the government title. Nor is there any controversy as to the legal insufficiency of the tax sale, deed and foreclosure, to pass a perfect legal title to the defendant. The whole case is, therefore, rested upon the single question of the statute: of limitations.
On January, 1843, Casper Nick, who was the plaintiff’s-first husband, entered the land in controversy, and on his way home from the land office was drowned. Shortly after his death, and on July 4th, 1843, a child was born to him by the plaintiff, who ' was named Casper W. Nick. In 1846 the plaintiff was married to John Evans, who died in 1853, and by whom she had two children, both of whom died before this suit was brought. In 1857 the plaintiff was again married to Harvey C. Colvin, with whom she lived until her death, which was after this suit was commenced, and by whom she had two-children, who have been substituted as plaintiffs herein. The plaintiff lived in Linn county, Iowa, some eight or ten miles from the land, from the date of its entry up to the fall of 1859, when she removed with her family, including Casper W. Nick, to Texas, where Casper died in the fall of 1861. She removed' from Texas to Schuyler county, Illinois, in the spring of 1869, and- resided there till her death.
The defendant’s title and claims grow out of the following facts: In 1839 James. Oavanagli bought of one King, and took possession of, a “claim” to about five hundred acres of government land, which included that in controversy here, or at
In 1853, when Duell & Holmes abandoned the quarries, Cavanagh was in possession of, and cultivating his farm which adjoined the land in controversy, that is timber and stone land. He then assumed entire possession of this land, and claimed to own it. He cut wood and timber from it as he wanted it for use; he quarried stone for his own use, and others were allowed by him to quarry rock there, which they did, and paid him for; he established a ferry and built a house for his ferryman; he used the property as his own, and paid
Upon the doctrine of Booth & Graham v. Small & Small, 25 Iowa, 177, we do not see any escape from the affirmance of this judgment, under the facts proved. It is there held that “ possession of land is. the holding of, and exclusive exercise of, dominion over it.” It is evident that this is not and cam not be uniform in every case, and that there may be degrees in the exclusiveness even of the exercise of' ownership. The owner cannot occupy literally the whole tract — he cannot have an actual pedis possessio of all, nor hold it in the grasp of his hands. His possession must be indicated by other acts. The usual one is that of inclosure. But this cannot always be
As we view the evidence, the actual adverse possession, commenced after Duell & Holmes abandoned the possession, and in the year 1853, and continued down to the commencement of this action, in 1870. Hnder these facts, that the statute is a bar cannot be doubted in view of our former decisions, even after allowing the year for the minority of Caspar W. Nick. See Phares v. Walters, 6 Iowa, 106; Montgomery v. Chadwick, 7 Iowa, 114; Kilbourne v. Lockman, 8 Iowa, 380; Johnson v. Hopkins, 19 Iowa, 49; Campbell v. Long et al., 20 Iowa, 382.
Affirmed.