Lead Opinion
It appears from the pleadings and proofs in this case that the complainant is the owner of lot 16 in, block 2 in R. Patterson’s first addition to the village (now city) of Cheboygan, county of Cheboygan, excepting, however, all that part of the above-described piece or parcel of land heretofore conveyed by Stanislaus Legault and wife to the Jackson, Lansing & Saginaw Railroad Company by deed dated the 18th day of September, 1880. The defendant Jackson, Lansing & Saginaw Railroad Company, a corporation, is the. owner of a railroad right of way in a side, or spur, track running from the main line to what is known as the “McArthur Dock.” The defendant, the Michigan Central Railroad Company, is lessee of the railroad right of way of the Jackson, Lansing & Saginaw Railroad Company. The Jackson, Lansing & Saginaw Railroad Company’s title to the right of way across complainant’s land is evidenced by two deeds, one a quitclaim from Robert Patterson and wife, dated Sep
It is the claim of the complainant that the fence on the easterly side of defendants’ right of way formed the westerly boundary of his lot, and other lots in the immediate neighborhood. Tracing the title from Stanislaus Legault and wife down to complainant through mesne conveyances, we have the following: A warranty deеd from Stanislaus Legault and wife to Gilbert Joslin, dated June 29, 1881, duly recorded, of lot 16 in block 2 in R. Patterson’s first addition to the village of Cheboygan according to the plat thereof, except, however, that part of said above-described pieces or parcels of land heretofore conveyed by grantors to the Jackson, Lansing Sc Saginaw Railroad Company by deed dated the 18th day of September, 1880. A warranty deed from Gilbert Joslin and wife to Polycarp L. Lapres dated October 9, 1884, and duly recorded, containing the same description, together with precisely the same exception as the previous deed. A warranty deed from Polycarp L. Laрres and wife to Samuel C. Bell, dated February 24, 1894, and duly recorded March 12, 1894, containing precisely the same description and exception as the prior deeds. The next and last conveyance is a warranty deed from Samuel C. Bell and wife to Frank R. Sheldon, the complainant herein,
It seems that Gilbert Joslin was the first purchaser to take possession of this property, which he did in 1881; and it appears that the fence above referred to had then been erected. He built a house thereon and remained in possession for a time. One Wedge, a tenant for Polycarp L. Lapres, seems to have built the barn, which was entirely on the disputed strip. Bell, while in possession, built an addition to the house and added a wagon shed to the barn, called by him a “lean-to.” The barn, shed, and a part of the kitchen are on the disputed strip of land.
It appears that Bell went into possession in 1889 under a contract to purchase from Lapres, although, as we have seen, he did not obtain his deed until February, 1894. He lived in the house continuously for 11 years from 1889, after which the property appears to have been leased for some 2 years, when it was purchased upon contract by complainant, who went into pоssession in 1902, and has lived continuously on the lot up to the time of the hearing in this case, although he did not obtain his deed until 1904. Complainant paid $700 for the property.
On or about the 8th of November, 1906, the defendant Michigan Central Railroad Company, by its servants, started to tear down the fence on the westerly side of complainant’s alleged land, and commenced to dig post holes on what complainant claims was his own premises easterly from the location of said fence, and 50 feet from the center of the track. Upon request of one of complainant’s solicitors, the said defendant railroad desisted from moving the fence, and immediately therеafter complainant filed his bill to quiet his title.
By his bill he claims that the premises were inclosed by a fence, and that he was, at the time of filing the bill, in actual possession of said described premises and that part thereof inclosed by the fence, and that he and his grantors had been in actual, open, notorious, visible, hostile, and
The defendants, jointly answering, admit that complainant is in possession of said premises, and that part thereof is inclosed by said fence; but they deny that said complainant and his grantors have been in actual, open, notorious, visible, hostile, and continuous possession thereof for 15 years and upwards. They furthеr admit that they claim to own, and have the right to the possession of, the part of the premises then occupied by complainant, and inclosed by said fence, and claim to own the property conveyed to them by the aforesaid conveyance of September, 1880. They deny that complainant has any title to that portion of said premises described in the said deeds, and they assert that complainant has no title to said disputed premises whatever; that is, so much of the fenced portion as is within the lines of defendants’ right of way. Defendants also, by way of cross-bill, set up by metes and bounds á description of their said right of way over the premises; assеrt that they claim to own the same, and that the claims and assertions of the said complainant constitute a cloud upon their title; and they pray that by decree their title may be quieted and the right of possession be adjudged to the defendants.
By a decree bearing date 28th of July, 1909, the circuit judge found that complainant had established by testimony the fact that he and his grantors had had the continuous, hostile, adverse, notorious, and visible possession
In the printed brief of complainant appears the following statement:
"The imрortant question in this case is whether or not the complainant has the right to tack his adverse possession of the strip of land in dispute to that of his predecessors and grantors, Samuel C. Bell and Loretta May Bell, husband and wife. It is not disputed that the adverse possession of said Samuel C. Bell did not continue for the full statutory period of 15 years; but, if the possession of the complainant can be tacked to that of his grantors, this would constitute the full time of 15 years, provided, however, that the exception in the deed from Samuel C. Bell and wife to complainant of this right of way did not break the continuity of the possession and did not stop the running of the statute of limitations.”
As we understand the position of defendants, they do not dispute the fact that the actual and continuous possession of the disputed strip of land, as held by the complainant and his grantor, Samuel C. Beil, exceeds the term of 15 years, but they contend:
(1) That the acceptance by complainant of the deed, excepting from said lot 16 in block 2 the entire right of way as conveyed to the defendant Jackson, Lansing & Saginaw Railroad Company by Stanislaus Legault and wife, in September, 1880, amounts to a declaration of acquiescence in defendant’s title, thereby admitting that his own holding was not adverse.
(2) That as the deed to the complainant did not contain a desсription of the disputed piece, he has no right to tack to his own possession the possession of his grantor Bell,, because there was no privity of estate between the parties as to the said described strip.
It is important to bear in mind that in every conveyance of the several grantors of the complainant, after the deed of right of way was given to the defendant Jackson, Lansing & Saginaw Railroad Company, there was the following exception:
*509 “Except, however, all that part of said above-described piece or parcel of land heretofore conveyed by Stanislaus Legault and wife to the Jackson, Lansing & Saginaw Railrоad Company by deed dated the 18th day of September, 1880.”
It clearly appears from this record that there is no evidence of any parol permission, or authorization of any kind, given by the grantor Bell to the complainant, to take the place of the said Bell in the wrongful possession which Bell held of the strip of land in controversy in this case. Nor is there any evidence in the record of any parol permission, or authorization of any of the grantors in the deeds hereinbefore referred to, to their grantees, to take the places of their grantors in the wrongful possession of said described strip of land. The record also shows that there was no parol agreement, understanding, permission, or authorization respecting the premises which complainant’s grantor had held, or would deliver; and this applies, not only to the strip of land in dispute, but also to that conveyed in the deed. The record shows that complainant took possession. There is not a syllable of any verbal authorization of delivery whatever. He testified as follows:
“I took possession of the premises after I bought from Mr. Bell.
"Q. When?
“A. Why, just as soon as I bought on contract; just as soon as I got the contract I moved in and took possession of it. I moved in, I think, in 1902, and got the deed of it in 1904.
“Q. When you bought the premises, did you inquire how far your lot went ?
“A. No, sir.”
The comрlainant contends that, under the authority of the case of Illinois Steel Co. v. Budzisz,
It is not necessary for us to decide whether any oral agreement to surrender a wrongful possession to the successor, so that where the continuous possession exists 15 years, would defeat an action to recover possession by the owner. Not a scintilla of evidence is shown in this record of any parol transfer of Bell’s possessory rights to the strip of land in litigаtion, and what is true as between Bell and the complainant is equally true as to all prior grantors. There was no transfer of any mere possessory right to the strip of land in litigation here, if any existed. No permission or authorization by Bell to Sheldon to take his place in possession of said litigated strip of land appears. The exception in the deed negatives such transfer, permission, or authorization, and the record contains no other testimony of any such transfer, permission, or authorization. Indeed, it may be said that the testimony establishes the very opposite. Bell could not transfer possessory rights of the strip without intending to do so; he could not intend tо do so without knowing that he had such possessory rights; and he testified that he did not know whether he occupied- any of the railroad company’s land, and never thought anything about it. And so complainant could not have acquired Mr. Bell’s possessory rights in the strip by parol, or other agreement, bargain, or understanding without having some knowledge of the subject; and his testimony shows that when he bought he had no knowledge that the railroad company owned this strip of land, and consequently he could have had no knowledge of Bell’s possessory rights therein.
As we have already said, in buying, complainant did not even inquire as to the extent of the lot he was buying. It being conceded that comрlainant has not had possession of the disputed strip of land long enough to acquire title thereto by his adverse possession, we are brought to the question whether or not he has the right to tack to his own possession the possession of his- grantor, Bell. It
It seems to us to be very clear that the complainant cannot rely upon his deеd to show privity of estate, because the disputed premises are not mentioned in the deed. Where the grantee relies upon the deed to show privity of estate, he cannot have the benefit of the grantor’s possession of lands which are not mentioned in the deed. 1 Am. & Eng. Enc. Law (2d Ed.), p. 845, and cases cited in note 4. The general rule is that possession cannot be tacked to make out title by prescription where the deed under which the last occupant claims title does not include the land in dispute. It must clearly appear in the deed that the particular premises were embraced in the deed, or transfer, in whatever form it may have been made. 1 Cyc. p. 100?, and note.
It was held in the case of Humes v. Bernstein,
In Erck v. Church,
In Witt v. Railway Co.,
The rule is that evidence of adverse possession must be strictly construed, and every presumption is in favor of the true owner, and that the plaintiff entered under his deed, and that his possession is only coextensive with his title, and restricted by the premises described in his deed. Cooper v. Ord,
“ If Mary Cordts had been shown to have occupied the land in dispute, Mrs. Reich could not avail herself of that occupation to make up the 20 years necessary to establish an adverse possession, for the reason that the description in her deed excluded the land, and, consequently, she had not acquired Mrs. Cordts’ title. A different case would have been presented had the description in that deed included the land in question.”
In Ward v. Bartholomew, 6 Pick. (Mass.) 410, it was held that disseisins do not aid one another in creating a title by possession. Thus, where the disseisor conveys part of the land, and the grantee, under color of the deed, enters upon the whole, the possession of the first disseisor will not avail the grantee in regard to thе part not embraced in the deed. Fell & Throp Co. v. Railroad Co. (N. J.),
In Maher v. Brown and Ely v. Same (heard together),
Messer v. Hibernia Savings & Loan Society,
There is no claim here that this complainant, holding a legal paper title to his lot, inclosed within his inclosure a piece of adjoining land and entered into possession of it. The inclosure or fence in the case we are considering was built by the defendant, the Jackson, Lansing & Saginaw Railroad Company. This defendant had a right to inclose so much of its land as it saw fit. The fact that it only embraced 50 or 60 feet within its inclosure, when it might have embraced 100 feet, is no evidence of an abandonment of that portion not fenced.
“The boundary line must have been, first, a disputed boundary; secondly, the fence must have been built pursuant to a mutual agreement between the adjoining proprietors to settle such disputed boundary. Unless these elements appear, the doctrine of boundaries cannot apply.”
When this fence was built, there was no dispute as to the boundary line between the railroad company’s right of way and the adjoining proprietor. Neither has there been any dispute of such true boundary line at any time. Had this fence been built approximately near the line, there would have been some plausibility in the position that it was intended as a line fence; but a difference of 30 or 40 feet shows that the defendants never could have intended it as a line fence. We do not think it сan be said that there has been acquiescence in a boundary line here.
But it is further contended by complainant that the doctrine of equitable estoppel should be applied to this case. There is no evidence in this record that the defendants, or either of them, have been guilty of fraud, or have held out any inducement to the complainant, or his grantors, to enter into possession of their property. Even if silence and acquiescence can sometimes estop a party from asserting a claim to real estate, there is no evidence in this case that warrants the application of the rule. The defendants have occupied the railroad track, the deed to complainant asserted their boundary, and the mere fact that they hаve not fenced in all their holdings does not give complainant a superior equity, in view of the fact that he was bound to look at the description in his deed. Had the deeds to complainant and his grantors contained the disputed strip of land, a different question might arise. One certainly cannot he estopped from asserting a title against a party who has always known of and always recognized it, as complainant did in accepting his deed. First Nat. Bank of Kalamazoo v. McAllister,
The defendants ask for affirmative relief, and that their right and title to the disputed strip be quieted. There is no evidence in this record of the value of the improvements which have been placed upon this disputed strip by the complainant and his grantors. Nor is there any evidence as to how much, if at all, the premises have been enhanced in value by reason of the buildings erected thereon. It seems to us, however, that the complainant and his grantors having been allowed to place these buildings on this disputed strip, probably in the mistaken belief that they owned the same, they should have the right to remove them within a reasonable time. The entire controversy should be settled in this suit. The complainant
The complainant’s bill of complaint should be dismissed, and the defendants’ title to the premises should be quieted upon the condition already indicated, and the decree of the lower court should be reversed, with costs of both courts.
Dissenting Opinion
(dissenting). I cannot agree with the conclusion reached by Justice Stone. This case was tried in open court by a judge who lived in the little town where the property in contrоversy is located. He had the great advantage of hearing and seeing the witnesses. He was of the opinion that the proof established the continuous, adverse, actual, notorious, hostile, and visible possession of complainant and his grantor for more than 15 years before bringing suit. I think this conclusion is abundantly justified by the record.
The railway company got its deeds of right of way in September, 1880. They were not put upon record until April, 1885. In 1881 fences were built inclosing a right of way, but the entire strip deeded was not inclosed. In June, 1881, Gilbert Joslin obtained a deed of lot 16 from the same parties who had deeded to the railroad company, and when he took possession under the deed the fence of the railway company was erected, though its deed was not recorded until four years later. Mr. Joslin, supposing the fence was the boundary line of his lot, took possession up to the fence and built a house upon the lot. In October, 1884, Mr. Joslin deeded to one Lapres, who had as a tenant one Wedge, who repaired the railroad
It is true all of the deeds excepted the right of way as granted by the deed dated September 18, 1880; but it is equally true that each of the grantees supposed the land deeded to them included all of the land up to the fence which was erected by the railroad company in 1881. Acting upon this supposition, they went into possession of the disputed strip. This possession was indicated since 1884 by making each year on the front pоrtion of the disputed strip a garden, by the building of a barn thereon earlier than 1889, and continuing the use thereof; by the erection and maintenance of the fences on the front and rear of lot 16, all the way to the railroad fence; by the construction and repair of the sidewalk front of lot 16, all the way to the railroad fence; by the erection of a kitchen, part of which was on the disputed strip; and by other acts of possession. When this possession began in 1881, the railroad fence had been built; but the deed to the railroad company of the right of way was not upon record, and was not recorded until nearly four years later. The case of Illinois Steel Co. v. Budzisz,
"Did the possession of the second occupant, under the circumstances, continue the possession of his predecessor so as to satisfy the statutory call for an uninterrupted 20 years’ continuous adverse possession ? ”
“ Is a paper transfer, evidencing a change of possession by succession, necessary to blend the first possession into the second — tack them to each other, as it is called ? In that, we adhere to what was said by the court, speaking by Mr. Justice Pinney, in Allis v. Field,89 Wis. 327 (62 N. W. 85 ), and Ryan v. Schwartz,94 Wis. 403 (69 N. W. 178 ), to the effect that, though thе possession of several distinct occupants of land, lasting for a continuous period of 20 years, cannot be united to satisfy the limitation statute, successive possessions, each reaching to and uniting with the one that follows it, by privity between the occupants, so as to render the possession of the property continuous from the first entry to the end of the period of 20 years, satisfies the statute, and a parol transfer of possession by one to another, as the former goes out of and the latter goes into possession, satisfies the essential of privity to tack the possessions together. The authorities all agree that privity between suсcessive possessors is all that is necessary to render them continuous, if the possession be in fact actual and adverse. That privity may be created in any way that will prevent a break in the adverse possession and refer the several possessions to the original entry. It may be created by lease, as between landlord and tenant, or by descent by operation of law from ancestor to heir, or by conveyance, either by parol or otherwise, from vendor to vendee. 1 Am. & Eng. Enc. Law (2d Ed.), p. 842, and cases cited in the notes; McNeely v. Langan,22 Ohio St. 32 ; Haynes v. Boardman,119 Mass. 414 ; Witt v. Railway Co.,38 Minn. 122 (35 N. W. 862 ); Low v. Schaffer,24 Or. 239 (33 Pac. 678 ); Vance v. Wood,22 Or. 77 (29 Pac. 73 ); Crispen v. Hannavan,50 Mo. 536 ; Weber v. Anderson,73 Ill. 439 ; Faloon v. Simshauser,130 Ill. 649 (22 N. E. 835 ); Menkens v. Blumenthal,27 Mo. 198 . The above cases, many of which are referred to in the briefs of counsel, are but a few of the authorities that might be cited to support the doctrine stated. It seems to be conceded by appellant’s counsel that many of such authorities are directly contrary to its position, but claim is made that they do not apply by reason of the statute (section 2302) which, as we have indicated, does not apply to the facts of this case. Only a few authorities that can be found are out of line*520 with those cited. They are in harmony with elementary principles as laid down in the text-books. The doctrine is found as clearly stated, perhaps, as anywhere, in 2 Ballard’s Annual of the Law of Real Property, § 25, cited by respondents’counsel; the following language being used:
“ ‘Succеssive possessions may be tacked together so as to form a continuous and uninterrupted possession for the essential period of time. There must be a privity existing between the parties transferring the possession. Such possession may begin in parol without deed or writing and may be transferred from one occupant to another by parol bargain and sale, accompanied by delivery. AU that the law requires is continuity of possession where it is actual; and this continuity and connection may be effected by any conveyance or understanding which has for its object a transfer of the rights of the possessor or of his possession, when accompаnied by an actual delivery of the possession.’
“ The doctrine is stated in 2 Pingrey on Real Property, § 1193, thus:
“ ‘Continuity is an indispensable element of adverse possession; but several possessions may be tacked together where they can be referred to the original entry. No paper evidence of a transfer of possession is necessary when the holding is under claim of the first entryman.’
“The discussion of this subject and citation of authorities might be continued to great length. It will be noted that in. every treatment of the matter, whether by text-writers or in judicial opinions, it is said that all that is necessary, where there is continuity of possession in fact, to connect the several parts of it, where there are such parts, so as to blend them into one term, continuous from first to last, is that there be privity between the persons as one succeeds to the other. Privity in such a case is the same as in any other, and it may be created in the same way. It is merely a succession of relationship in the same right to the same thing. 1 Greenleaf on Evidence, §§ 189, 523; Hart v. Moulton,104 Wis. 349 (80 N. W. 599 ,76 Am. St. Rep. 881 ). All that is necessary to privity between successive occupants of property, and in regard thereto, is that one receive his possession from the other by act of such other or by operation of law.”
See Matthews v. Railway Co.,
If title by adverse possession was not acquired in this case, I cannot conceive of a case where it should obtain.
I think the decree should be affirmed, with costs.