3 Mont. 344 | Mont. | 1879
The complaint alleges that the appellant on October 1, 1876, was seized in fee and the owner of and entitled to the possession of certain lots of land which were within the boundaries of the appellant’s mill-site; and that the respondents entered into the possession of the premises and unlawfully withhold the possession thereof from the appellant. The answer denies these allegations and says that the respondents and their predecessors in interest have occupied and possessed the lots since 1865 ; and that they have occupied the same adversely to the appellant and all persons more than three years before the commencement of this action. The appellant’s replication denied the averments of the answer.
Upon the trial the appellant introduced in evidence a patent from the United States to the appellant to said mill-site, which embraced the lots that were described in the complaint. The patent was dated October 27, 1869. In 1872 Mrs. Powers, one of the respondents, who was the real party in interest, purchased of Joseph Codling a dwelling-house, stable and chicken-house, which were on the land in controversy. The husband of Mrs.
The court below entered judgment on the verdict of the jury for the respondents.
Before we consider the errors which are complained of by the appellant, we will refer to the statutes, which are applicable to the case and are contained in the chapter relating to “ Limitations.5’ Cod. Sts. 514.
“Any peaceable entry upon real estate shall be deemed sufficient and valid as a claim unless an action be commenced by the plaintiff for possession within one year from the making of such entry, or within three years from the time when the right to bring such action accrued.” § 3.
“ In every action for the recovery of real property or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time prescribed by law, and the occupation of the premises by another shall be deemed to have been under such legal title, unless it appear that such premises shall have been held and possessed adversely to such legal title for three years before the commencement of the action.” § 4.
“ When it shall appear that there has been an actual continued occupation of the premises under a claim of title, exclusive of any*348 other right, but not founded upon any written instrument or judgment or decree, the premises so actually occupied, and no other, shall be deemed to have been held adversely.” § 6.
“ 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, when it has been enclosed by a good and substantial fence. Second. "When it has been usually cultivated or improved.” § 7.
It appears from the transcript that Codling executed a bill of sale to Mrs. Powers of the dwelling-house, stable and chicken-house, but did not make a deed of the land in dispute. It does not appear that this instrument was delivered to either of the respondents, or accepted by them. The claim of Mrs. Powers to the tract of land which she inclosed by a fence is not founded upon any written instrument, judgment or decree.
The appellant contends that the court erred in giving certain instructions, and refusing to give one, which the appellants asked to be given to the jury. We think that all the questions which have been discussed by counsel are determined by the interpretation of the statutes .supra. The court below followed these statutory provisions, and made no modifications thereof, and therefore committed no error. Upon the matters of law that are involved in this action, the reports are full of decisions, which are based upon the statutes regulating the subject. Mr. Tyler gives the following rule : £‘ Whenever the statute declares what shall constitute the possession adverse, the question is settled by a reference to the statute, and the decisions of the courts which have been made under it. But, when the statute is silent upon the subject, the question is settled by general principles which have been sanctioned and established by the courts.” Tyler on Eject. 852.
Was the possession of Mrs. Powers adverse under the laws of this Territory ? She made a peaceable entry upon the premises, inclosed the same by a fence in 1872, and annually cultivated and improved the same from 1872 until 1876. If her possession during this period was adverse to that of the appellant, she ac
In Ellicott v. Pearl, 10 Pet. 412, Story, J., remarks in the opinion that “ the erection of a fence is nothing more than an act presumptive of an intention to assert an ownership and possession over the property.” In Livingston v. Peru I. Co., 9 Wend. 511, Savage, C. J., says: “Where the person claiming to hold by possession has no written evidence of title, but claims by parol to be the owner, there must be an actual occupancy, a pedis possessio, a substantial inclosure by fence, sufficient for the protection of the crops.” In Humbert v. Trinity Church, 24 Wend. 587, it is decided that where there is an actual occupation of land, an oral claim thereto is sufficient to sustain the defense of adverse possession. “ Putting a fence, for example, around the land, or erecting buildings upon it, are constructive notice to the world.” Poignard v. Smith, 6 Pick. 172; Angell on Lim. (5th ed.), § 383. While the statutes of the Territory, supra, control this matter, we have referred to these decisions to show that the legislative assembly recognized and adopted legal principles which had been established many years. We have also seen the effect of their application to facts, which are similar to those under consideration. Under the testimony, it is clear that the possession of Mrs. Powers, after the inclosure of the land by her fence, was adverse more than three years before this action was commenced.
The appellant insists that the court erred in excluding the following evidence, which was offered during the trial: That Codling bought the buildings in 1871, -but did not buy the land because it was owned by the appellant; that he sold the buildings to Mrs. Powers in 1872, and then told her that he claimed no interest in the ground and could only sell these improvements;
Does this testimony affect the character of the possession by Mrs. Powers? Does it tend to prove that she succeeded Codling as a tenant at sufferance of the appellant, if we assume that he sustained this relation? A review of the facts enables us to give to these questions satisfactory answers. We are acquainted with the rule that the declarations of a tenant in the possession of land may be given in evidence as a part of the res gestee to qualify the possession ; but, before the introduction of this testimony, “ it must be proved that the tenant was in possession at the time the proposed declarations were made.” Ellis v. Janes, 10 Cal. 456. Codling did not deliver the possession of the land in controversy to Mrs. Powers, and there is no testimony that he was in the possession of the same when the foregoing statements were made. When Mrs. Powers constructed and maintained her fence after she purchased the interest of Codling in the buildings, the appellant and all persons were notified that she was in the actual occupancy of the premises in dispute, and that she was asserting some right which might ripen into a perfect title, if she was not interrupted in a legal manner. Codling did not erect a fence and sold none to Mrs. Powers. The fence was maintained by Mrs. Powers without any license or action on the part of the appellant, or its agents, and the relations of all the parties’by virtue of the transactions between Codling and this respondent concerning the buildings are of a different nature. The appellant stood by and saw Mrs. Powers do those acts without making any objection. We will assume that this testimony had been admitted, and that the respondents knew that the appellant had received a patent to the land from the United States. Mr. Tyler, in his work on Ejectment, says: “ Neither a deed nor any equivalent muniment is necessary -where the possession is indicated by actual occupation, and any other evidence of an adverse claim exists.
-x An oraq claim of exclusive title, or any other circumstances by-which the absolute owner of land is distinguished from the naked possessor, are equally admissible and may be equally
The appellant claims that the title of the respondents was not hostile in its inception. But the acts of Mrs. Powers, under the statutes of the Territory, supra, were of this character. She intended to hold theland which was inclosed by her fence, against the claim of all persons, and her possession was hostile or adverse to the rights of the true owner. Angell on Lim. (5th ed.), § 391; Adams v. Burke, 3 Sawyer, 415. The testimony of Mrs. Powers that she always claimed the title to the premises is uucontra-dicted.
Judgment affirmed.
