97 Kan. 176 | Kan. | 1916
The opinion of the court was delivered by
This is an action to quiet title to real property. The plaintiff recovered judgment. The defendants appeal.
John W. Gray filed on government land in Greeley county but died before making final proof. He left as his heirs Robert J. Gray, Narcissus A. Kelly, Callie T. Gray, Lilla E. Samish and George W. Gray. Narcissus A. Kelly made final proof and a patent was isued by the government to the heirs of John W. Gray. P. J. Donahue was appointed administrator of the estate of John W. Gray, and under an order of the probate court conveyed the land to J. C. V. Kelly, the husband of Narcissus A. Kelly. Afterwards, Kelly and his wife conveyed the land by warranty deed to Clarence L. White, who in turn conveyed it to the plaintiff in.April, 1889. Robert J. Gray died in 1912, intestate, leaving as his only heir his grandson Rex Williams. In August, 1912, Rex Williams conveyed by quitclaim all his right, title and interest in the land to Clement L. Wilson. In 1911 Callie T. Gray, Lilla E. Samish, George W. Gray and Narcissus A. Kelly by quitclaim deed conveyed all their right,
The land was continuously vacant, unoccupied and in a wild state from 1889 until 1912, when defendants Clement L. Wilson and Virginia Lee Byerly went on the land and plowed around it. John W. Gray was buried on the land and his body remained there until 1912, when it was removed therefrom by the defendants. The plaintiff has paid the taxes on the land from the time of acquiring his deed in 1889 to the present time. The defendants do not now claim title to the whole of the land. They claim four-fifths of it and ask that it be divided.
1. Byerly v. Eadie, 95 Kan. 400, 148 Pac. 757, disposes of the administrator’s deed, and its validity as against the grantees of the patentees is not now urged. The deed from Narcissus A. Kelly and her husband to Clarence L. White conveyed to him the title acquired by her under the patent from the gov-ernment. The deed from White to the plaintiff conveyed that title to. him'. The plaintiff and the defendants then became tenants in common of the land in controversy.
2. The principal question for our consideration is, Did the plaintiff acquire title to this land by adverse possession, the. land being vacant and in a wild state, and no apparent acts of ownership having been exercised thereon ? This question has been disposed of by numerous decisions of this court. In Dickinson v. Bales, 59 Kan. 224, 52 Pac. 447, it was said:
^To constitute adverse possession of land, it is not absolutely necessary that there should be inclosure, buildings," or cultivation, but the acts done must be such as to give unequivocal notice of the claim to the land, adverse to the claims of all others, and must be of such a character and so openly done that the real owner wiH'be presumed to know that a possession adverse to his title has been taken.” (Syl. ¶ 1.)
(See, also, Taylor v. Miles, 5 Kan. 498, 514; Myers v. Coonradt, 28 Kan. 211, 215; Board of Regents v. Linscott, 30 Kan. 240, 264, 1 Pac. 81; Case v. Frazier, 30 Kan. 343, 2 Pac. 519; Walker v. Boh, 32 Kan. 354, 357, 4 Pac. 272; Harris v. Curran, 32 Kan. 580, 4 Pac. 1044; Craven v. Bradley, 51 Kan. 336, 339, 32 Pac. 1112; Claflin v. Case, 53 Kan. 560, 36 Pac. 1062.)
The plaintiff’s possession, if he can be said, to have been in possession, was neither open nor notorious. It did not have those elements that ripen into title by fifteen years’ continuous.
The judgment is reversed. The action is remanded with direction to proceed in accordance with the views herein expressed.
