Miller v. Conley

190 P. 301 | Or. | 1920

BURNETT, J.

The testimony of the plaintiff and of her husband is to the effect that in .June, 1900, the father, A. B. Conley, gave to his daughter the tract of land in dispute, in pursuance of which they went upon it, took possession thereof, and used it as her own continuously from that time forward, making sundry valuable improvements thereon. By at least three disinterested witnesses they proved that at about that time and subsequently on different occasions the father told the witnesses that he had given the 80-acre tract in dispute to his daughter, the plaintiff. At the time his testimony was taken, the father was past eighty-two years of age, and, as he admits, his memory was impaired. When his attention was called to the declarations imputed to him by the witnesses, he stated that he’ had no recollection of making them. He stoutly maintained, however, in general, that he only intended to allow his daughter to live on the land at his pleasure, and that she went there and remained there by his permission under those conditions. The mother says substantially that such was the intention of herself and her husband. But she does not give any detailed statement of what the father, her husband, who was the owner of the land, said on the subject to the daughter. There is no pretense that the father or anyone for him entered upon the lands and laid the water-pipe or did any other,act of the kind prior to the expiration of ten years’ possession by the plaintiff.

1. A detailed analysis of the testimony as in argument before a jury would not add anything to, the sum of legal knowledge to be preserved in the reports. It is sufficient to say that a careful study of the record convinces us that the Circuit Court was right in its decision on the facts of the case, to the effect that the father made a parol gift of the land to his daughter in June, 1900, at which time she took possession of the property as her own and continued in exclusive occupancy of the same ever afterwards under that gift. This establishes the controlling fact in the case, to wit, a parol gift by the father to the daughter, coupled with her continued adverse holding of the property for nineteen years and more.

In Allen v. Allen, 58 Wis. 202 (16 N. W. 610), a father had entered a pre-emption on certain lands in the name of his minor son, then about five years of age. The father continued to occupy the land, the son remaining a member of his family and living there also until some years after reaching majority. It is stated in the opinion that there is no evidence in the case showing that the father asserted any title to the land hostile to the title of his son, unless his possession, use of and improvement of the same for over thirty years is evidence of such assertion of title, until a few months before his death, when he claimed it in conversation with a third party. In the course of its discussion of the ejectment action brought by the son against one claiming under the father, the court used this language:

“Had there been no evidence in this case bearing upon the question of adverse possession except the fact that the defendant and those under whom she claims had been in the actual possession and use of the land, cultivating and improving the same, having the same assessed as their lands, and paying the taxes thereon, and in other respects using said land as. the owners usually do, for more than twenty years before the commencement of the plaintiff’s action, we are of the opinion that the defendant would have been entitled, at least, to have had the question of their holding adversely to the plaintiff submitted to the jury, and, perhaps, to have a verdict directed in her favor.”

The case turned upon the point that the testimony clearly showed that the father admitted the son’s title continuously until a short time before his death.

In Murphy v. Newingham, 151 Ky. 360 (151 S. W. 930), the principle is thus stated:

“It is well settled that where there is an unconditional parol gift of a well-defined body of land, accompanied by an actual possession for fifteen years or over, with claim of ownership, such possession. ripens into title, and the donor cannot recover the land. If, however, one enters upon land by the owner’s permission, expecting that the owner will give it to him, then such possession is not a hostile holding. * * If the gift was made at that time, then the holding of the plaintiffs was adverse from that moment, and, having held the land for more than fifteen years, their possession ripened into title.”

That was a case where a son sought to enforce an alleged parol gift of land by his father to himself. The law was as stated above, but the facts showed that no gift was made or intended, and hence the' son failed to establish title. These, cases are cited from the brief for the defendants, but lately the question was examined at length in Parker v. Kelsey, 82 Or. 334 (161 Pac. 694), an almost identical case, in which we reached the conclusion that a parol gift of land is adequate to the initiation of an adverse possession by the donee, which being continued for the statutory period of ten years is sufficient to establish a fee-simple title in the one to whom the gift was made.

2. The fallacy in the argument for the defendants here lies in the apparent assumption that permission is not sufficient to inaugurate an adverse possession. Such, however, is not the true principle, for even the cases cited by the defendants lay down the doctrine that a gift of land by parol, itself permissive in its character and voluntary in its inception, establishes the beginning of an adverse possession. Indeed, if Jones goes upon Brown’s land armed with a shotgun, drives off the latter, and remains there in that attitude for ten years, claiming the land as his own, adverse possession is established, accruing upon which is the fee-simple title in the lands. Such, or a similar, display of force, however, is not an absolute requisite; for it is competent for Brown to give the land to Jones by parol, vacating it and allowing the latter to remain there for ten years under those circumstances, with the same result as before. The doctrine the defendant seeks to apply relates to permission merely to occupy and in subordination to the legal title of the one granting the permission. Jt does not include possession given with design to confer the legal title upon the one who assumes the occupancy.

3. It remains to consider the questions about water, mentioned in the pleadings. As to the diversion of the spring, the defendants plead that A. B. Conley, operating in fact through his agent, the defendant son, went upon the land as owner and laid ■the pipe-line conducting the water to other premises. This however, according to the testimony, was not done until after the adverse possession of the plaintiff had continued for more than ten years and hence had ripened into a fee-simple title in the latter. If that had been done within the statutory period, it might have constituted an interruption of the continuity of the plaintiff’s adverse possession and have so defeated it as a means of acquiring title. The diversion of this water, under those circumstances, however, not having continued for ten-years, 'and the consent of the plaintiff thereto not having been stated in the answer, it does not amount to a vested right in the defendants. In other words, their proof does not show an adverse maintenance of the right in the land of the plaintiff sufficient to establish title in the water by prescription. . That is to say, the testimony discloses title to the lands in the daughter by adverse possession at the time the water was diverted, with the deduction that the allegation of the defendants that they went upon their own land and diverted the water is not proved, and with the further deduction that they have not shown title in themselves by adverse use of the water for ten years.

The defendant brother states only conclusions of law in his attempt to control the waters flowing in the ditch mentioned in his answer. The particular language alluded to is this:

■ “That this defendant, J. Frank Conley, has the right and is entitled to the use of the waters of said stream for irrigating his land and for stock water thereon and that it is necessary for him to go along and upon the said ditch and watercourse over the lands described in the complaint for the purpose of cleaning out and repairing said ditch,” etc.

The pleader does not claim to have appropriated the water within the legal meaning of that term. At best, he indicates only a right as a riparian proprietor. In the syllabus to Porter v. Pettengill, 57 Or. 247 (110 Pac. 393), condensing the opinion written by Mr. Justice Bakin, it is said:

“A complaint to determine the priority of irrigation water rights is insufficient where it does not definitely describe plaintiff’s lands, and does not show that any particular land needed irrigation, does not specify the amount of water diverted nor the amount needed to the acre, or for any specific land, and does not show how much water plaintiffs’ grantors acquired a right to use; an allegation that plaintiffs were entitled to all the water in a creek during the dry season being too indefinite.”

4. Measured by this standard, the answer of J. Frank Conley is insufficient to confer upon him any right to the water in the ditch mentioned. Whatever the attitude of the parties may have been at the time the pipe-line was laid, whether friendly or otherwise, and whether a license grew out of the arrangement or not, are not matters for us to decide in this suit, because there is no pleading upon which such a determination could rest.

It follows that the decree of the Circuit Court must be affirmed. Ateirmed.