45 Minn. 401 | Minn. | 1891
Action of ejectment, in which judgment was entered for defendants in the trial court, upon the ground that the premises had been held by the defendants and their grantors adversely to the plaintiff for a period of more than 20 years prior to the commencement of the action. There was but little controversy over the facts. In the year 1862 plaintiff owned the westerly half of lot 13, block 23, St. Paul proper, and also a strip adjoining the same on the west, being the easterly 2 feet of lot 12 in the same block, upon which he had previously erected a frame building. One Mack was the owner of the remainder of lot 12. These lots were about 130 feet in depth, and faced upon Third street. Mack had, the year before, leased to Nicols & Dean the easterly 28 feet of his lot for a period of five years. In 1862 he erected for their use and occupancy, as his tenants, a stone building, reaching from the front of his premises back about 75 feet. Thereafter, but prior to June 4, 1866, the tenants built a shed, extending from the stone building to the rear of the lot, the easterly wall thereof being of stone, and on the same line as the easterly wall of the building. It was not as high as this wall, but .substantially a continuation of it. Mack supposed and believed when lie erected his building that it was upon his own premises, and that the east wall thereof was on the line between himself and plaintiff. His tenants when building the shed supposed and believed that the east wall thereof was upon the leased premises; and both of these parties supposed and believed when the lease was made in 1862 that the line between the tracts of land was that afterwards fixed and occupied by the easterly walls of the building and shed, when in fact the walls of the building and of the shed encroached upon the plaintiff’s land along their entire length. The strip of landjm controversy is that covered by this encroachment. Mack died in 1870, his interest descending to his widow and heirs-at-law, who sold to these defendants in 1883. These respective owners have been, by themselves or by their tenants, in open and notorious possession of the stone
It is argued by plaintiff, appellant, that, because Mack and his tenants, Nicols & Dean, entered into the actual possession of this strip of land through mistake, and without any intent to do so, and because the former and those who have succeeded him have held possession without realizing that a part of the stone walls had been built over the line, such possession could not be accompanied with an intent to claim adversely, and hence was at no time hostile to the true owner. But on this point, and to the extent of that part of the disputed strip covered by the wall of the building, the case cannot be distinguished from Seymour v. Carli, 31 Minn. 81, (16 N. W. Rep. 495.) In that case it appeared that Carli and his grantors had owned and had been in possession of a certain lot for more than 20 year's, and that for the same period of time Seymour, Sabin & Co., and their grantors, had owned and been in possession of an adjoining lot, save as to that portion in dispute. More than 20 years prior to the commencement of the action Carli’s grantors had erected a house wholly on their own lot, as was supposed, but, by reason of a mistake as to the location of the line, a part of the building was placed on the adjoining lot, then owned by the grantors of Seymour, Sabin & Co., and there it had remained for more than 20 years, under no other claim than that of title to the lot on which the parties intended to erect it. It was held that the actual, exclusive possession of Carli and his grantors was, to the extent of their occupancy, adverse, notwithstanding the original entry and possession thereunder were by mistake. ' The facts which appear in that case and those here, so far as they relate to the erection of the stone building and its occupancy, are almost identical. No distinction can be made except as to certain documentary testimony, consisting of deeds and leases made by Mack and his successors, to which reference will be made later.
But it is claimed by plaintiff’s counsel that the successive possessions of Mack by his tenants, of his heirs and their grantees, to the litigated premises cannot be tacked together so as to form a continuous and uninterrupted possession adverse to the plaintiff for the essential period of time; citing Sherin v. Brackett, 36 Minn. 152, (30 N. W. Rep. 551;) Witt v. St. Paul & Nor. Pac. Ry. Co., 38 Minn. 122, 129, (35 N. W. Rep. 862.) The rule is there clearly stated. The privity spoken of and requisite is that existing between two successive holders when the latter takes under the earlier, as by descent, or by will, or grant, or by a voluntary transfer of possession. In this case the first tenants surrendered, and Mack gave possession in 1866 to Nicols of the entire premises covered by the easterly walls of his two-story building and of the shed in its rear, with full belief as to ownership. The plaintiff had previously been disseised, and this disseisin was in no way interrupted thereafter. The buildings with their easterly walls remained, and were successively transferred to the present defendants in 1883. The adverse possession was con
We have mentioned that plaintiff’s counsel place much reliance upon a clause in the descriptive part of certain deeds and leases, executed either by Mack in his lifetime or by those in privity with him, his heirs or their grantees. In each of these instruments the premises were described, substantially, as the easterly 30 feet of lot 12, excepting the easterly 2 feet previously conveyed to Eamsey; and, further, in each the stone building is mentioned and is described as standing on the conveyed premises', when it did not, altogether, in fact. The counsel insist that the exceptions of the strip of two feet in these deeds and leases are declarations by Mack and his successors that they made no claim to that part of the strip now in litigation on which the buildings stood, and must be considered as conclusive evidence that Mack, his heirs and their grantees, did not hold, or claim to hold, adversely. If it had appeared in evidence that, when executing these instruments and reciting the exception therein, Mack and his successors knew of the encroachment, and that in erecting their buildings they had trespassed upon the plaintiff, there might be merit in the counsel’s contention; but the testimony is to the contrary. All parties supposed and believed the structures were on the line, and not over it.
The point is made that Mack, who died in 1870, and likewise his heirs, whose interests were not transferred until 1883, were not residents of, nor could they have been found within, the state. It has been held at the present term of this court that the exceptions found in Gen. St. 1878, c. 66, § 15, do not apply in actions to recover real property, or to recover the possession of the same. City of St. Paul v. Chicago, Mil. & St. Paul Ry. Co., supra, 387.
Judgment affirmed.
Vanderburgh, J., took no part in this case.