166 P. 298 | Mont. | 1917
delivered the opinion of the court.
In 1897 Joseph Bohler was the owner of lot 1, block 10, of the Butte town site, forty-two feet wide east and. west, and 100 feet north and south, and then sold the south half (42x50) to the Parrys, and at the same time ereeted a fence on or near the line dividing the two portions. By mesne conveyance M. T. Walsh obtained title to the north half about 1898, and in 1905 he sold and conveyed it to defendant, Marshall, who during the same year erected upon the property a substantial stone building, the south wall of which extended to the line of the Bohler fence. In 1909 Magna Rude succeeded to the interest of the Parrys in the south half, and in 1914 she commenced this action in ejectment, claiming that defendant’s building encroaches upon her ground 1.12 feet at the west end of the building and two feet at the east end or Alaska Street front. By answer the de
Without stopping to consider the unsatisfactory evidence offered in support of plaintiff’s claim, or the merits or demerits of defendant’s contention that plaintiff is estopped to assert title to the ground in dispute, we confine ourselves to the defense of adverse possession, as it is determinative of the controversy.
There is not any conflict in the evidence. The question for determination is: What is the legal effect of the evidence produced by defendant in support of his claim to title by adverse possession? For sixteen years prior to the commencement of this action, defendant and his predecessor Walsh were in the quiet, undisputed, and uninterrupted possession of the ground north of the Bohler fence, including the north half of lot 1 and the ground brought into controversy by this action. Since 1-905 defendant’s possession has been characterized by every element which enters into the doctrine of prescription. However, in order to sustain this defense it is necessary for defendant to tack on his possession to that of his predecessor Walsh for at least a sufficient period to amount in the aggregate to ten years, the period of the statute of limitations. ■ While it is beyond question that Walsh was in actual, exclusive, peaceable and uninterrupted possession from 1898 until he sold to Marshall, it is the contention of plaintiff that the evidence is insufficient to show that Walsh’s possession was hostile. Plaintiff having shown that
It is not made certain by this record just what purpose Bohler
In Lamme v. Dodson, above, this court said: “The question of adverse possession is one of intention. The intention must be discovered from all the circumstances of the ease.” The rule, recognized practically everywhere, is aptly stated in 2 Corpus Juris, 128, as follows: “Declarations or assertions by the occupant are not essential to claim of title which may be made by acts alone quite as effectively as by declarations. Customary acts of ownership and control of the land inconsistent with the title and possession of the true owner will suffice, and it has been said that this is the only proof of which a claim of title to a very large proportion of property is susceptible.” In 1 R. C. L., p. 704, the same principle is stated, though in somewhat different language, as follows: “If the character of the possession is such that a claim of ownership may be inferred therefrom, and is open and notorious, it is hostile. It is not necessary that one should expressly declare his possession to be hostile, or that his use of
Walsh might have given oral utterance to his purpose, but he might have indulged in levity or been misunderstood, but no sensible person could accuse him of having perpetrated a joke, or could have misunderstood his purpose, when he erected a fence ten feet high to inclose the ground of which he was then in possession. Less positive acts might have been sufficient, but we can scarcely conceive of more emphatic means of expressing an intention to claim and hold property.
In 2 Corpus Juris, 122, it is said: “Every possession is adverse which is not in subservience to the title of another either by a direct acknowledgment or by an open or tacit disavowal of right on the part of the occupant, and it is in the latter case only that the law adjudges the possession of one to the benefit of another.” In Chessman v. Hale, 31 Mont. 577, 3 Ann. Cas. 1038, 68 L. R. A. 410, 79 Pac. 254, this court said: “In order to obtain a right by prescription, it is necessary that during the prescriptive period an action could have been maintained by the party against whom the claim is made. ’ ’ Apply this rule to the facts of this ease. If, as plaintiff claims, the Bohler fence encroaches upon her land, the same encroachment existed from the time her predecessor Parry secured title; and, whatever may be said of the encroachment, so long as Parry’s grantor held title to the north half, certain it is that from the time Walsh repaired and extended the fence in 1898, the Parrys had a cause of action against him and his successor which continued until barred by the statute. (Bullerdick v. Hermsmeyer, 32 Mont. 541, 81 Pac. 334.)
But it is said by respondent that the possession of defendant
In 1 Ruling Case Law, section 48, page 371, the same doctrine is announced as follows: “It has frequently been held that a possession of land which is the result of ignorance, inadvertence, misapprehension, or mistake, will not amount to an ouster of the true owner, and, consequently, will not ripen into title. The great weight of authority, however, is to the effect that an open, notorious, and hostile possession of property for the statutory limitation period is sufficient for the acquisition of title by adverse possession, and that the fact that the possession was taken under a mistake as to boundary lines is immaterial. In other words, the mistake cannot be pleaded in avoidance of the legal effect of the possession.” And again in section 50: “The general rule is that where one in ignorance of his actual boundaries takes and holds possession by mistake up to a certain line beyond his limits, upon the claim and in the belief that it is the true line, with the intention to claim title, and thus, if necessary, to acquire ‘title by prescription’ up to that line, such possession, having the requisite duration and continuity, will ripen into
In Jennings v. Gorman, above, this court, without announcing the rule, referred to the first five cases above and to Grube v. Wells, 34 Iowa, 148, for a discussion of the subject and for the enlightenment of the court below upon a retrial of the case.
The evidence shows beyond controversy that defendant acquired title to the strip in controversy by adverse possession.
The judgment and order are reversed and the cause is remanded, with directions to enter judgment in favor of the defendant.
Beversed and remanded.