30 F. 738 | U.S. Circuit Court for the District of Northern Iowa | 1887
This case is now before the court upon a rehearing granted on petition of complainant,
In August, 1883, the complainant filed the present bill, setting forth that he is the absolute owner in fee of the lands; that the same were not swamp or overflowed lands, within the meaning of the act of 1850, and the selection thereof as such was a fraud; that the same had been set aside and annulled, etc.
Upon the former hearing the court held that the land was overflowed land, within the meaning of the act of 1850; blit without determining whether, in this proceeding, defendant could, upon the allegations of his cross-bill, have the patent to complainant set aside, a decree for defendant was ordered, on the ground that complainant was barred by the statute of limitations. Counsel for complainant now insist that the lands are not shown to bo swamp lands, within the meaning of the act of congress of 1850. The act includes two kinds of land, swamp and overflowed. If, by reason of either swamp or overflow, the land is rendered unfit for cultivation, it comes within the purview of the act. What is the evidence on the question?
James Ificldey testifies that ho has known the land since 1857. “It is low bottom land, subject to overflow from the Des Moines river; have soon it overflowed from two to six feet deep. It lies in the corner of a big bend of the river, so that the water, when it overflows, passes over it. There is not to exceed ten acres that could bo plowed on the whole half section; and the greater part of each 40-aore tract is subject to overflow from llio Dos Moines river, so that it can’t bo cultivated.”
Thomas Kirby testifies “that the north half of section 28 is overflowed land, and unfit for cultivation. All of it is liable to overflow, and most of it every year. One year I cut hay on the highest part of it, and lost it from overflow. If it did not overflow it would be so wet from the Des Moines river that it could not be cultivated. It generally overflows in the spring, and then the water goes down, so we cut hay in July, August, or September. It could not be cultivated in any crops of grain.” Mulroney, Laughlin, Mahan, Booth, Tobin, and Shea all testified to the same facts. '
Complainant does not introduce any testimony whatever to contradict the statements of these witnesses. The uncontradicted evidence, then, shows beyond question that, from 1857 to the present time, this land has been and is low bottom land, liable to overflow, sometimes once and sometimes oftener each year, and in some seasons it has been covered from early spring until August; and some years it has been so completely overflowed that not even a crop of wild hay could be saved from it, and that at no time since 1857 could the land, or any part, be cultivated for the raising of any kind of grain, com, or the like thereon. No other, conclusion can be possibly reached, under the evidence, than that the land is “overflowed,” within the meaning of the term as used in the act of congress of 1850.
It was therefore rightfully selected by the state of Iowa, through the agency of the county, as part of the swamp lands to which the state was entitled; and when thus selected, and the list filed with the surveyor general, and by him approved and certified to the United States land-office at Fort Dodge, by whom the same was marked on the township map as swamp land, and therefore withdrawn from entry or sale, it would seem that, until such selection had been canceled or set aside in some proper manner, the land could not be legally entered by any one else. Whether the rights of the defendant under the title derived through the state from the swamp-land act were not sufficient in equity to overcome the title asserted by complainant was not discussed or decided in the original opinion, the decision being placed upon the conclusion arrived at on the plea of the statute of limitations. On behalf of complainant, it is now urged that the evidence fails to show that the defendant had such actual and open possession of the realty as is necessary to render available the plea of the statute, and in support of this view counsel have cited many extracts from a large number of cases.
The number of causes to be found in the reports in which courts have been called upon to determine what acts are or are not sufficient to establish the fact of open and actual possession, only serves to show that no fixed rule of universal application can be laid down. That which,
Thus, in Ewing v. Burnet, 11 Pet. 41, it is said that “it is well settled that, to constitute an adverse possession, there need not be a fence, building, or other improvements made. It suffices for this purpose that visible and notorious acts of ownership are exercised over the premises in controversy for 21 years after an entry under claim and color of title. So much depends on 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 preciso rule adapted to all cases. * * * Neither actual occupation, cultivation, or residence are necessary to constitute actual possession, where the property is so situated as not to admit of any permanent useful improvement, and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which ho claimed in his own right, and would not exercise over property which he did not claim.”
It will be borne in mind that in this case the defendant claimed title to the entire premises, under conveyances duly executed and properly recorded; so that there can be no question as to the extent or character of the claim of title relied upon by defendant. It is not a case in vdiich the party is forced to rely upon his occupancy of the land as the evidence of the extent of his claim, but rather a case in -which actual possession of part may be deemed to show occupancy of the entire tract.
As has already been said, the uncontradicted evidence in the case shows that the land in dispute is overflowed, -wet land, wholly unfit for cultivation for any kind of crops, such as corn, -wheat, oats, or the like, and only fit for use as grass land. The evidence no less clearly shows that, ever since the defendant purchased Lhe land from Stockdale, in 1861, he has used the same for the only purpose for which it is fitted; that is, as grass land, and unless prevented by the overflowing water, the grass has each year been cut, the hay has been stacked upon the premises, and protected by a fence, and has been removed as needed, or as sold to third parties. Prom the acts of defendant, his neighbors knew that he was in possession of this land, and that he was asserting title thereto. The evidence is plenary on this point. If possession and actual occupancy is
Under the evidence submitted in the case, no other fair conclusion can be reached than that since 1861 the defendant has openly asserted his title to these premises, and has used and occupied the same for just such purposes and in the manner in which it would be expected that the real owner would occupy the same. This being so, it must be held that the defendant has been in the open, adverse, and actual occupancy of the land since 1861, under color of title, and it is therefore too late for complainant to assert and maintain' a right to possession, even though he holds a patent to the land. It is also urged in argument that the defendant is estopped from asserting any right to this land because he permitted complainant to pay the taxes on the same up to the year 1883. The defendant had not, as already said, concealed his claims to this land. Ho had placed upon the records of the county the conveyances under which he claimed the land, and these deeds, together with the selection of the land as swamp land, had all been made parts of the public records before the complainant made his entry or obtained a patent. The acts of ownership exercised by defendant were also open and above board. The complainant made claim to the title, and paid the taxes because of such claim. There is no evidence adduced showing that complainant was in any manner misled by defendant, either actively or passively. It is not shown by evidence that complainant did not know all about defendant’s claim of title when he paid the taxes. The only evidence adduced by complainant is the patent and tax receipts. He did not testify in the case, and certainly the court cannot assume that he was ignorant of facts which were -well known in the neighborhood. Certainly, before any shadow of claim by way of estoppel can be made out, it must appear that complainant paid the taxes in ignorance of the rights of defendant. If he paid the taxes, knowing that defendant made claim to
The burden of proving the facts upon which the plea of estoppel is based was upon complainant, and he has not seen fit to offer any testimony whatever, but rests his case simply upon proof of the issuance of a patent, and payment of the taxes. To sustain the plea of estoppel, evidence in support of the alleged facts should have been given, if any such exists. None is found in the record, and therefore there is no foundation upon which an argument can be based in support of the plea of estoppel.
The case is simply reduced to this: that, in 1861, the defendant took a conveyance to the land from John M. Stockdale and wife, under what then seemed to be a good title, and has since used and occupied the premises for the only purpose for which the same are fitted, and has exercised such acts of ownership over the same, that all people living in the neighborhood have known that ho claimed the lands, and occupied the same as his own.
In 1863 the complainant procured a patent for the lands from the United States, and has paid taxes thereon down to the year 1882; and in August, 1883, he filed the present bill, which, in effect, asks that the defendant be deprived of the possession of the lands, after he has used and occupied the same openly as his own for a period of 22 years, claiming title under public acts and deeds of conveyance that were a part of the public records before the complainant procured his patent to the land.
The defendant, among other matters, pleads the lapse of time and adverse possession as a defense; the evidence sustains the plea; and the decree, therefore, ordered at the first hearing, must be upheld, and it is so ordered.
No opinion was filed when judgment was rendered on the original hearing.