Eastern Oregon Land Co. v. Cole

92 F. 949 | 9th Cir. | 1899

MOB-BOW, Circuit Judge,

after stating' tbe facte of tbe case as above, delivered the opinion of tbe court.

Tbe errors assigned are nine in. number. Tbe first four relate to tbe admission of testimony on behalf of the defendant as to- reputed ownership of the land in question from the year 1872 to the commencement of this action. Three witnesses were asked, in slightly different form, who was considered the owner of the land in the community in which the land was situated, between the years 1872 and 1895 or 1896. To these questions the witnesses answered, "J. L. Cole.” The title of the defendant, so far as tbe questions now before tbe court are concerned, is founded upon tbe adverse possession of himself, and parties through whom be derived bis interest, for a period exceeding the statutory time which bars an action for the recovery of laud in the state of Oregon. It is provided in sections 3 and 4 of the Code of Civil Procedure of the Btate of Oregon (hat actions at law shall only be commenced within the period prescribed after the cause of action shall have accrued:

“Within ten years, action for ilia recovery of real properly, or for tlio recovery of the possession thereof; and no action shall bo maintained ior such recovery unless it appears that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the premises in question within ten years before the commencement of the said action.” Hill’s Ann. Laws Or. pp. lot, 132.

Adverse possession of real property for the period mentioned in the statute is a bar to an action by tbe owner to recover possession; but: such possession by the defendant must: be actual, hostile, exclusive, open, notorious, and continuous for the whole period of 10 years. If any of these constituents is wanting, the possession will not effect a bar of tbe legal title, Sharon v. Tucker, 144 U. S. 533, 12 Sup. Ct. 720; Ward v. Cochran, 150 U. S. 597, 14 Sup. Ct. 230. The evidence of reputed ownership of the land in controversy, standing alone, did not tend to establish either one of these elements of possession; but where the possession of the defendant has been admitted by the plaintiff, as in this case, the evidence was admissible to prove the character of that possession. In Land-Grant Co. v. Dawson, 151 U. S. 586, 14 Sup. Ct. 458, the defendant pleaded adverse possession of the lands claimed by him for more than 10 years next before the commencement of the mit and that the plaintiff’s right to sue for the same accrued more than 10 years prior thereto. The lower court admitted testimony to the effect that the land claimed by the defendant was generally reputed to belong to bim; and the supreme court held that, claiming as the defendant did by open, notorious, and adverse possession, it was competent to prove that it was generally understood in the neighborhood, not only that the defendant pastured his cattle upon these lands, but that he did so under a claim of ownership, and that his claim and the character of his possession were such that he was generally reputed to be the owner. The court said further that, while this testimony would be irrelevant in support of a paper title, it had an important bearing upon the notoriety of the defendant’s possession. In other words, it was not admissible as tending to prove possession, but to show that the possession otherwise established was open and notorious. In the record before us, the defendants’ reputed ownership of the land does not stand alone. It was alleged by the plaintiff in its complaint that the defendant was in possession of the land at the time of the commencement of the suit, and it was admitted in its reply to the defendants’ amended answer that he had been in possession for six years prior thereto. It must be presumed that the testimony was admitted for the purpose of explaining that possession, and not to establish an admitted fact. For this purpose it was clearly admissible.

The remaining errors assigned relate to instructions to the jury. The court instructed the jury as follows:

“If, during any of the time after January 1, 1872 (the date, as I understand it, when the company’s legal title became so far perfected that it might have brought its action for ejectment), until the commencement of this action, Emory Cole and his predecessors in interest, or either of them, have held adverse, actual, open, continuous, and exclusive possession of the premises in controversy for a period of ten years, a complete title was acquired, as against the plaintiff and its predecessors in interest.”

It is objected to this instruction that it does not correctly define “adverse possession.” Plaintiff contends that the jury should have been further instructed that such possession, to be effective, must have been hostile, notorious, and under a claim or color of title. The court did instruct the jury that the possession must be “adverse.” The word “adverse,” as used in this connection, is a general term, and, in legal signification, involves the element of hostility under a claim or color of title; and this would be the reasonable and natural interpretation given to the instruction by the jury. But if the plaintiff deemed the word too general, or not sufficiently definite and clear, it was its duty to point out the omission, and request an instruction that would clearly and distinctly indicate to the jury all the necessary elements of adverse possession. Without such a request, the omission cannot be assigned as error.

In Express Co. v. Kountze, 8 Wall. 353, the court said:

“It is the usual practice for the presiding judge at a nisi prius trial, in his charge to the jury, to take up the facts and circumstances in proof, explain their bearing on the controverted points, and declare what are the legal rights of the parties arising out of them. If the charge does not go far enough, it is the, privilege of counsel to call the attention of the court to any-question that has been omitted, and to request an instruction upon it, which, if not given, can be brought to the notice of this court, if an exception is taken. But the mere omission to charge the jury on some one of the points in a case, when it does not appear that the party feeling, himself aggrieved made any request of the court on the subject,-cannot be assigned for error.”

So, in Tweed’s Case, 16 Wall. 504, where exceptions were taken to the giving of certain instructions to the jury, and refusal of the court to give certain others, it is said by Mr. Justice Clifford:

“Reasonably viewed, it is clear that the instruction given covered every allegation of the claim, and every ground of defense set up both in the preliminary exception and in the amended answer. Instructions given by the court at the trial are entitled to' a reasonable interpretation, and, if the propositions as staled are correct, they are not, as a general rule, to be regarded as the subject of error on account of omissions not pointed out by the excepting party, as the party aggrieved, if he supposes the instructions given are either indefinite or not sufficiently comprehensive, is always at liberty to ask that further and more explicit instructions may he given; and, if he does not do so, lie is not entitled to claim a reversal of the judgment for any such supposed error. Courts are not inclined to grant a new trial merely on account of ambiguity in the charge of the court to the jury, where it appears that the complaining party made no effort at the trial to have the point explained.”

To the same effect are Insurance Co. v. Snyder, 93 U. S. 393; Shutte v. Thompson, 15 Wall. 164; Carter v. Carusi, 112 U. S. 484, 5 Sup. Ct. 281; Railway Co. v. Volk, 151 U. S. 78, 14 Sup. Ct. 239.

The remaining errors assigned relate to instructions of the court, to which further objections are made that they do not correctly state all the elements constituting adverse possession. What has been said concerning the objections to the precedinginstruction is equally applicable to these objections, and for the same reason we are of the opinion that they cannot be assigned as errors. We find no error in the record. The judgment of the circuit court for the district of Oregon is therefore affirmed.