51 F. 932 | 5th Cir. | 1892
This is an action of ejectment. Declaration is in the usual form. The plea is not guilty, which puts in issue the title to the land in controversy. The action was brought by defendant in error in the circuit court for the northern district of Florida, and trial had in that court, January 6,1892, the district judge Hon. Charles
There must, in addition, be proof that satisfies the jury that at least-one of the grantors in this chain of deeds had been in possession of the premises, where the chain does not reach back to the sovereignty, before the defendant in possession can be required to defend his possession. It is certainly the province of the judge to construe written instruments given in evidence, and instruct the jury as to their legal effect, and as to how far parties and privies are bound by the recitals in deeds or other writings. If recitals in ancient instruments can be used against strangers, their probative force is not to be weighed by the judge merely because they are a part of a deed, but must, under proper instructions, be submitted to the jury. The mere possession of deeds and the payment of taxes do not, as matter of law, show possession of the land conveyed. Dubois v. Holmes, 20 Fla. 834; Tyl. Ej. 541; 1 Phil. Ev. 356, and note 3.
The land sued for was two blocks in an incorporated town. It is urged by the counsel for defendant in error in his oral argument that the town is a populous one, with many persons holding possession under grants from plaintiffs grantors. If it be conceded that such evidence tends to show that the grantors must have had possession, it cannot withdraw this issue of fact from the jury. We are of opinion that in withdrawing this issue of fact from the jury the learned trial judge erred. ■The defendant in ejectment proved that it constructed its railroad on the
“If you find from the testimony that that railroad was laid down across the plaintiff’s lots under a claim of right, and that the plaintiff knew it more than seven years before the bringing of this suit, then he cannot recover in this case. If they did not go there under a claim of right, and if the plaintiff did not know that they were there with the intention of remaining, seven years before the bringing of this suit, then he is entitled to recover a verdict. ”
And refused to charge, as requested by the defendant, that—
“If you'find from, the evidence that the defendant in the year 1882, or more than seven years before the beginning of this suit, under a claim of right, laid its track on the land in question, and, from the time of laying the track until the beginning of the suit, visibly, openly, and notoriously used the said track for the daily passing and repassing of its trains without the consent of the ‘‘ovrá'ófs of tlie land, then such use of the land by the railway company has been adverse to the true owner, and the railway company has acquired the permanent right to continue such use, irrespective of the question of title.”
CounseTfor defendant in error contends that the railroad only claimed an easement over the land, and insists that such easement cannot be acquired against the true owner, unless the latter has knowledge of the claim, and acquiesces in it for the requisite period of time. As to certain easements, such as lights, authorities can be found in the English reports for this contention of counsel. But it will be found that the doctrine, even in England, is restricted in its application to such easements as inflict no immediate and palpable injury to the owner’s possession,' but, as to rights of rvay and of common, the doctrine has not
“For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, judgment, or decree, land shall be deemed to have been possessed and occupied in the following cases only: First, where it has been protected by a substantial inclosure; or, second, where it has been usually cultivated or improved.”
We are of opinion that to add the words, “with the knowledge of the owner,” would be an amendment of the statute. That whether possession is open, notorious, continuous, exclusive, without leave or favor from the owner oí the fee,—in other words, adverse to him,—is a question for the jury to decide on the proof, and is in no manner affected by the owner’s ignorance (if he was ignorant) of the adverse holding; and that there was error in the charge given in this case on this point, and in refusing to give the requested charge indicated. For the errors herein noted the case is reversed, and remanded to the circuit court, with direction to grant the defendant in ejectment a new trial, and it -is so ordered.