Pratt v. Ard

65 P. 255 | Kan. | 1901

The opinion of the court was delivered by

Cunningham, J.:

We are compelled to affirm the judgment of the court below on the authority of Anderson v. Burnham, 52 Kan. 454, 34 Pac. 1056, and Guinn v. Spillman, 52 id. 496, 35 Pac. 13. In the former case this court held that “possession of land by an adverse occupant for more than fifteen years, which is actual, notorious, continuous, and exclusive, will give title thereto, although such possession is entirely destitute of color of title.” Of this declaration of the law we do not understand that plaintiff in error complains, but rather of the court’s application of it to the facts of this case. He contends that, inasmuch as the marking of the corners of the land in controversy and the plowing of the hedgerow along its east line were done while the land yet belonged to the government, these acts should not be referred to and connected with subsequent acts of ownership, so that on such subsequent acts might be predicated a claim of possession to the entire tract; that the acts of building the temporary structures on the southwest corner and, after the removal of the same, of cultivating the small patch of ground upon which they stood were fugitive ones and inadequate to fasten a claim of occupancy upon the entire eighty; that, if good for anything, they were sufficient to start and keep running the statute only as to the land thus actually occupied. Under the authority of the cases cited, and others, we must withhold our assent to this claim, although it is presented with much force and vigor by counsel for plaintiff in error.

The claim made by the defendant in error is that the marking of the corners of the land and the plowing of the hedgerow along the east line, which with the connecting lines completely enclosed the eighty, were continuing acts. His acts indicating ownership of any portion of the land must be referred to and interpreted by this claim. The erection of buildings upon and the plowing and cultivating of portions of the land were an assertion of title to the entire tract indicated by the boundaries marked. From yea to year defendant in error lariated Ms horses upon portions of the land, cut and stacked hay upon other portions, and assumed ownership of it by selling to his neighbors the right to cut hay thereon, or by selling to them hay cut therefrom. All these acts “proclaimed to all that he was exercising acts of ownership over the land inconsistent with the rights of the real owner,” and they were such acts as were appropriate ‘ ‘ according to the locality and quality of the property.” These continuous acts finally culminated in enclosing the tract with a wire fence and plowing a large part of it. During all the time no one else was making any claim to the possession of the land, or any portion of it. In the light of this evidence, we are not able to say that'the trial court was not justified in finding for the defendant, and such finding having been made, we may not disturb it.

It is further suggested by the plaintiff that the defendant, being aware of the fact that his brother was negotiating for the purchase of this land from the plaintiff and assenting to the same “provided his brother also paid him for his right or claim to the land,” thereby acknowledged the title to be in the plaintiff and by such acknowledgment arrested the running of the statute of limitations, if it had commenced to run in favor of the defendant. It is undoubtedly true that the statute would have been suspended by any act which would have amounted to a recognition of plaintiff’s ownership of the land by the defendant. We do not think the facts shown amount to such a recognition. The most that can be said is that the defendant was willing that his brother should purchase the title held by the plaintiff, the brother having arranged, in case such purchase should be consummated, .to buy out the defendant. This, instead of showing a recognition of a paramount title in the plaintiff, shows an existing claim on the part of the defendant.

The judgment of the court below must be affirmed.

Johnston, Greene, Ellis, JJ., concurring.