68 Mo. 400 | Mo. | 1878
This ejectment was brought in December, 1875. It was conceded that the plaintiff had the better title, and the only defense relied on was the statute of limitations. The forty acres in dispute belonged, in 1856, to Livingston county, as swamp land, and was agreed to be conveyed to one Craig upon his payment of eighty per cent, of the purchase money, twenty per cent, of it having been paid at the date of the agreement. This title of Craig was assigned to the plaintiff in 1860, and in 1866 the plaintiff received a deed from the county. In I860, but subsequent to Craig’s assignment to plaintiff, Craig conveyed his farm containing 651 acres, 600 acres of which were under fence, together with this forty acre tract now in dispute, to a trustee to secure certain debts named in the deed. Upon the foreclosure of this trust by a sale in 1863 or 1864, the defendant’s father-in-law purchased the entire tract of 691 acres, and obtained a deed from the sheriff,
The first question presented by the testimony is, whether the actual occupation, under inclosure, of the 600 acres of land by the defendant, will of itself draw to it a constructive possession of the forty acres embraced in the same deed; and if not, whether it will, in connection with the exercise of the usual acts of ownership over the forty, to which there was a better outstanding title, constitute such an adverse possession as will protect him under the statute of limitations. The first point has been considered and decided by this court in several cases. They are chiefly cases in which New Madrid locations, under the act of 1815, were laid on portions of the St. Louis or St. Charles commons, thereby covering one or more common field lots to which the title originated under the act of -1812. The cases of McDonald v. Schneider and Griffith v. Schwenderman, 27 Mo. 405, 412, are cases' of this character. In the former it is observed by Judge Scott, who delivered the opinion of the court: “ Although it is a rule that he who is in possession of a part of a tract of land, having title thei'eto, is adjudged by the law to be in the .possession of the whole of it; and although it is a rule that where possession is mixed, or where two persons possess adjoining tracts, and their possession conflicts or interferes the one with the other, the legal possession is adjudged to be in him who has the better title; for, as both cannot be seized, the pos
So that the principal and decisive question is, in this case, was there such adverse possession of the forty acres in dispute, continued for ten years, as will defeat the plaintiff's rights under his superior title. As has been said in numerous cases, both in this State and elsewhere, adverse possession under the statute of limitations is a subject not susceptible of very definite explanation. It depends somewhat on the circumstances of each case, but the general rules which may be extracted from the multitude of cases on the subject, seem to be sufficiently definite for the guidance, of courts in their application to the variant features developed in each particular case as it arises. The words “ actual occupancy ” are themselves indefinite in their meaning, for although they are usually applied to a case of residence on the land, or to an occupation by-fences or buildings, they are not necessarily restricted to such marks of occupation, but may be applied to other acts of ownership which are known to the true owner. In the present case the forty acres in controversy was literally swamp land, and only valuable for the timber on it. There were some acres of it which could have been
5. While it is true that in some cases actual occupation is not indispensable, still its absence must be supplied by some act or acts of ownership done on or about the land that will give notice of an adverse claim to the owner by visitation and inspection of the land, and if the court finds that defendant, Baker, for years at a time exercised no visible acts of ownership on the land, so that upon inspection no vestige of an adverse occupation remained upon the land, then the cutting of house-logs and the making of rails at three different times in a period of ten yéars, cannot and do not constitute such an adverse occupancy of the tract in controversy as will defeat the legal title of plaintiff read in evidence.
6. To constitute an adverse occupancy of the tract in controversy, the court must find that the possession of defendant, and those under whom he claims, was, for ten years next before the commencement of this suit, notorious, that is, generally known by those residing in the neighborhood, and that it was an open, visible and exclusive possession, accompanied by such acts of ownership as would enable any one upon a visit to and inspection of the
8. A fence, building or other improvement is not essential to constitute an adverse .possession. Acts of ownership, under a claim of right, visible, are sufficient to authorize the court to find such possession; and the nature of these acts of ownership must depend on the uses of which the land was capable. These instructions are clearly in conformity to repeated decisions of this court. Draper v. Shoot, 25 Mo. 203; Fugate v. Pierce, 49 Mo. 441; Musick v. Barney 49 Mo. 458; Turner v. Hall, 60 Mo. 271; Key v. Jennings, 66 Mo. 356, and the verdict on them must have been based on the conclusion from the evidence that the acts of ownership exercised in this case were “ visible,” and such as upon inspection would advertise the owner of an adverse claim. In Draper v. Shoot, it was held that to constitute an adverse possession there need not be a fence, building or other improvement made, and that it suffices for this purpose that visible and' notorious acts of ownership are exercised over the premises in controversy for the time limited by the statute; that much depends upon the nature and situation of the property, the uses to which it can be applied, or to which the owner or claimant may choose to apply it, that it is difficult to lay down any precise rule in all cases, but that it may safely be said that ■where acts of ownership have been done on land, which from their nature indicate a notorious claim of property in it, such acts are evidence of an oustei; of a former owner, and an actual adverse possession, provided the property was not susceptible of a more strict or definite possession. Under this view of the law, which was clearly explained by the instructions on both sides given by the court, it cannot be maintained that the verdict was without evidence. Had the court qualified the instruction given for defendant by requiring the acts of ownership to have been exercised with the knowledge of the adverse claimant, the propriety of the verdict would have been more obvious, as there
Affirmed.