172 N.W. 926 | S.D. | 1919
Lead Opinion
This action, begun in the year 1914, involves the ownership of a tract of 58.17 acres of land the boundaries of which are of the following lengths: North line,. 13 chains and 55 links; east line, 38 chains and 42 links; south line, 17 chains and 15 links; west line, 37.chains and 90 links. The plaintiffs claimed that it constituted a part of the northeast % of section 13, township . 103, range .65. The defendants claimed that it constituted a part ..of the northwest of section 18, township 103, range 64. This land was involved in the same survey as that in Mason v. Braught, 33 S. D. 559, 146 N. W. 687. Findings, conclusions, and judgment were rendered for plaintiffs. The defendants appeal from a judgment and order denying.new trial.
“VIII. That about the year 1886, with the consent and under the direction of the said Ira J. Lennox, the then owner of the said northwest quarter of section 18, the defendant, J. E. Helton, who iwas then occupying said premises as a tenant of said Lennox, placed a fence around said quarter section; that said fence was the property of said Helton and erected for his own use; that the west side of said fence was placed on or near a line which said Helton and Lennox supposed, to be approximately the true line between said sections 13 and 18 and inclosed the land in controversy- in this action; that said fence was after-wards, and about ten years prior to the trial of this action, moved by the said Helton to a line about two rods east of its first location, where it now stands' and incloses the land in controversy.
“IX. That shortly after the erection of said fence, and in the same year, Leimox transferred said northwest quarter of section 18 to William Groves, and from that tinie to the commencement of this action the said J. E. Helton did, and does now, occupy said land, inclosed by his fence, including the land in controversy in this action, and used the same by sufferance of said William Groves and his heirs without paying any rent and Without any formal written or oral lease or contract; that neither said William Groves nor his heirs ever had any knowlédge prior to the commencement of this action, of the boundaries of said northwest quarter of section 18 or the location of said fence on the west side thereof; that neither said Groves nor his heirs have ever occupied or possessed the land in controversy otherwise than as hereinbefore stated.
*67 “X. That neither said Ira J. Lennox nor William, Groves or his heirs ever had any intention of occupying- or authorizing- the defendant J. E. Helton to occupy any land not actually included within the true boundaries of said northwest quarter of section 18, or any knowledge that said J. E. Helton was so occupying land not within the northwest quarter of section 18, and that the defendant J. E. Helton was occupying the strip in controversy in the belief that the fence approximately marked the true line with the intention to claim only to the true line wherever it might be, and without any intention to claim to the iine marked by his fence, regardless of the location of the true line, and without any intention of encroaching or tresspassing upon the northeast quarter of section 13, or of acquiring any portion of said quarter by adverse possession, or otherwise, but with the intention to claim and occupy only such land as was actually included within the northwest quarter of section rS.”
“No action for the recovery of real propeny, or for the re-: covery of the possession thereof, shall be maintained, unless it. appears that the plaintiff, his ancestor, predecessor or grantor was seized or possessed of the premises in question within twenty years before the commencement of such action.”
The New York courts have held that this section applies only to actions at law. See Bliss N. Y. Ann. Code (6th Ed.) § 365, and cases cited. But, if that is so, which we do not decide, nevertheless the provisions of section 44, C. C. P. (section 2281, Rev. Code 1919), apply to the present action even if section 43 does not. Section 44, C. C. P., lays down the same rule as to any cause of action “founded upon the title to real property.”
* * shall be deemed to have been under, and in subordination- to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title for twenty years before the commencement of such action.”
It is under this section that respondent justifies finding X. We are of the opinion that finding X is not sustained by the evi
“When I first went down there, I missed the quarter corner. It was my intention to try to put my fence on the correct line, and it has been my intention all the time to hold to the correct line. I don’t claim to hold any further than the correct line. 1 claim to hold out as far as that fence is. I thought that fence was on the correct line when I erected it, and I think so yet. I never owned the northwest of 18. I have held it under the Groves family ever since they got it. It was fenced when they got it, neither Groves nor Lennox ever lived on the land.’’
“Whenever it .shall appear that the occupant, or those under whom he claims, entered into the possession of premises under claim of title, exclusive of any other right, founding such claim upon a written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree or judgment, or-of some part of such premises, under such claim for twenty years, the premises so included shall be deemed to have been held adversely. * * *”
The facts in this- case bring it clearly under the provisions of this section. The occupant, a tenant, claimed under the several grantees in the chain of title to the northwest % of section 18, township 103, range 64, beginning back in 1883. One Rutter acquired the said land by patent -from the government. He conveyed to Lennox by deed in 1883. In 1883 Helton, the owner of the northeast of said section 18, did some breakmg for Lennox on the north side of Lennox’s land and as far west as the present fence. Lennox w’s present when the -breaking was done, and they located the west line of his land by a fence on section 7. Helton testified that the distance along the north line of section 18 from his own northeast corner to the fence in question
“To constitute such adverse possession the essential requirement seems to be that the party- shall enter under a claim' of title exclusive of any other right, founding such claim upon a written instrument.”
Upon this subject this court said in Mason v. Braught, supra:
“During all of such time they had been making improvements thereon’, believing in good faith that they were the owners of the premises so occupied. At this late date and under the circumstances disclosed by the record in this case, the defendant should not be heard to claim that he, or his grantor, ever acquired any title to or interest in the tract of land; in controversy, and this, too, regardless of whether or not through some mistake of the government officials or government surveyor there was issued to his grantor a patent to this tract of land when his grantor had no right to the s.ame.”
Of this section, and others similar to ours, the Wisconsin court also remarked as follows in Ovig v. Morrison, 142 Wis, 243, 125 N. W. 449:
*70 “Upon unexplained, exclusive, continuous occupancy of land under a chain [claim'] of title, by one not the true owner, for the statutory period to make title by adverse possession, being shown, the presumption of seisin during any part of such period in the true owner 'disappears, and there arises in place thereof the pre- • sumption that during all such period the possession had all the requisites of an adverse holding, subject to be rebutted toy proof that it was in fact subordinate to the right of the true owner, but conclusive in the absence of such rebuttal.”
“As a general rule possession is not adverse when the parties intend to claim only as far as the true line. But the question of adverse possession may be conclusively determined by the length of time during which there has been acquiescence in a disputed boundary. When such acquiescence continues during the statutory period prescribed as a bar to re-entry, title may be acquired through acquiescence alone. The rule that the presumption of an agreement, fixing a division line is conclusive, where both parties have been in possession and use of their respective lands up to a dividing line marked by visible objects, such as a fence, is correlated to the rule of adverse possession, and is dis-' tinct from the rule of estoppel by acts or conduct. Such possession for the statutory period barring re-entry is conclusively presumed to be adverse, and the right is barred by the statute, without further proof that possession is adverse.”
Under the Minnesota statute (like our section 43, C. C. P., except as to time) the Supreme Court of that state said in Kelley v. Green (Minn.) 170 N. W. 922:
“The fact that defendant andi his predecessors supposed they were occupying lot 9 is not important. ‘Where one of two adjoining owners takes and holds actual possession of land beyond the boundary of his. own * * * tract, under a claim, of title thereto as being a part of his own land, though under a mistake as to the location of the boundary line, such possession, for the purposes of the statute, is to be deemed adverse to the true owner and a disseizin.’ Seymour v. Carli, 31 Minn. 81, 16 N. W. 495.”
“Whereas, by section 368 of the same statute, such a possession for the period of 20 years is sufficient to overcome the presumption in favor of the owner of the legal title. The case at bar seems to 'be precisely within the doctrine declared, per Selden, J., in Crary v. Goodman, 22 N. Y. 170, 175, viz., ‘that where a grantee in taking possession under his deed goes unintentionally and by mistake beyond his proper boundaries, and enters upon and actually occupies andi improves land not included in the deed, claiming and supposing it to be his, this occupation is to be deemed adverse within the meaning of the statute of limitations, and, if continued for 20 years, would bar the right of the true owner.”
The subject of adverse possession is thoroughly annotated in a note in 33 E. R. A. (N. S.) 923. In view of the provisions of our statute we particularly commend the author’s criticism of what is known as the “Maine” rule relied on by respondents. See, also, 2 Corp. Jur. 141, § 245.
“The necessity for the system which is written into our Code in order to avoid confusion and uncertainty on the subject of adverse possession is significantly illustrated by the claim here made and another, which, until recent years, was often dignified as legitimate and is yet disturbing in the administration of justice. On the’ one hand, it was claimed that adverse possession could not be¡ grounded on possession as owner under mistake of boundaries, while on the other it was claimed that such possession must, to be effective, be characterized by good faith. The result was the theory that if a person, as owner, maintained ex-*72 elusive, continuous occupancy by the location of his building or otherwise, partly within and partly without his true line, according to his paper title, for 20 years or any greater length of time, he was still in danger of 'being dispossessed of the latter portion, because, if his occupancy was by mistake of boundaries, that was fatal to his claim of title, and if he intended to claim as owner regardless of the true boundary, or knowing that he was a trespasser, that was bad faith and likewise fatal to his title. It is obvious that the only sensible, safe, and really equitable rule is to make the physical characteristics of possession, excluding all other persons, the sole test of adverse possession, and so it was written in the Code. It has been lost sight of at times. Experience'has demonstrated, clearer and clearer, as time has progressed and the importance of stability of titles has grown with increase in value of property, the wisdom of the Code makers in incorporating into their work the simple'test of adverse possession indicated.”
We are aware that the Supreme Court of Wisconsin, in Zuleger v. Zeh, 160 Wis. 600, 150 N. W. 406, a decision rendered later than Ovig v. Morrison, supra, has held that their section 4211, St. 1917 (our section 47, C. C. P., except as to time), does not apply to lands lying outside and clearly beyond the calls of a deed. It seems to us that this is a wrong interpretation of that section. The court, after quoting the section, said:
“The period of adverse possession is shortened to ten years only as to ‘the premises included in such instrument’ ”
■ — thus entirely, overlooking the clause “under such claim,” viz., the claim that the written instrument was “a conveyance of the premises in question.” We courteously suggest that possibly the court has again allowed itself to render an opinion to which the sentence in Ovig v. Morrison, supra, “It has been lost sight of at times,” may be said to be applicable.
We are also aware that in Pope v. Hanmer, 74 N. Y. 240, the court held that the occupancy of land beyond the true line must be actual, and not merely constructive, and that in so holding the court said of their section of statute corresponding to our section 47, C. C. P.:
“It seems to me incongruous to say that a person claims title under a written instrument, to land not included in the instru*73 ment, and the language of section 82 repels such an idea. It requires ‘continued occupation and possession of the premises included in such instrument.’ ” •
It sems to us that our sections 47 and 49, C. C. P., are companion sections; that they both- refer to cases where the “unless” clause of section 46, C. C. P., applies; that section 47, C. C. P., refers to cases where the- entry under claim of title is under a written instrument or decree; that section 49, C. C. P., covers cases where the claim of title is not founded on a written instrument or decree; that section- 47, C. C. P., is clearly broad enough to include cases of entry upon and possession of more land than that covered by the description in the instrument, else the words of the clause “as being a conveyance of the premises in question” are not given the meaning which they plainly contemplate shall be given; that section 48, C. C. P., defines the acts which constitute adverse possession under section 47, C. C. P.; that section 50, C. C. P., defines the acts which constitute adverse possession under section 49, C. C. P., ’and that together sections 47, 48, 49, and 50, C. C. P., cover the entire field of the subject of adverse possession under claim of title. It seems to us incongruous to say of the present case, as we would be obliged to say if we followed the last-cited Wisconsin decision, and the decision in
The judgment and order appealed' from are reversed, and the cause is remanded to the trial court, with directions to enter judgment for appellants upon their counterclaim.
Concurrence Opinion
(concurring specially). I am unable to agree with my Colleagues in their criticism of the opinion in Zuleger v. Zeh, as I am firmly convinced that the court in that case placed the only construction upon what is our section 47, -C. C. P., that the plain English therein contained will permit of. My Colleagues construe this section as though the phrase “so included” found therein read “so claimed.” It might be better if the Legislature had used the phrase “so claimed',” but that does not justify us in disregarding the plain language used by the lawmaking department.'
Section 48 prescribes the essentials of that possession which will be deemed adverse where possession is taken under claim of right based on a written instrument. iSection 47 prescribes the period during which such adverse possession must continue to overcome the presumptions declared by section 46, and it declares the extent of the territory to which the adverse possession applies. If the possession is taken under claim founded on a written instrument, and the “possession of the premises included in such instrument” continues 20 years, then “the premises so included” (clearly meaning the premises included “in such instrument”) .shall be deemed to have' been held adversely. Plainer English could not have been used, and, so far as I have been able to ascertain, no case is to be found wherein any court has given to this section the construction put upon it by my Colleagues. Not a one of the cases which they have cited, except Zuleger v. Zeh and Eldridge v. Kenning, have the remotest bearing upon the proper
“It is said that the conveyance under which the plaintiff claims did not purport to include the strip of land in question, but, in terms, conveyed only the east half of lot No. 4, and therefore bounded the land conveyed by the true center line of that lot. which is conceded to be the east line of the strip in question. All this is true, but it does not render the plaintiff’s possession any the less ‘adverse,’ within the meaning of the statute of limitations, upon the undisputed facts of this case. Such adverse possession as will ripen into title in 20 years need not be under color, but only under claim, of title. 'Section 372 of the 'Code of Civil Procedure prescribes what is necessary to constitute an ' adverse possession in favor of one whose claim is not founded upon a conveyance or decree which actually includes the premises in question. The provision is as follows: ‘Eor the purpose of constituting an adverse possession by a person claiming title not .founded upon a written instrument or a judgment or decree, land is presumed to have been possessed and occupied in either of the following cases: * * * (1) Where it has been protected by a substantial inclosure; (2) where it has been usually cultivated or improved.’ In this case both of the conditions prescribed concur, and an undoubted case is made of a possession in the plaintiff and her grantors, adverse to the legal title, for a period of more than 40 years, whereas by section 368 of the same statute such a possession for the period of 20 years is sufficient to overcome the presumption in favor of the owner of the legal title.”
The above italicizing is ours. In Pope v. Hanmer, 74 N. Y. 240, it was held that no “adverse possession” could be claimed ' under sections 82 and 83, C. C. P., now sections 369 and 370, C. C. P., of that state (our sections 47 and 48), of any land not covered by the description in the deed; and it was held, as in Eldridge v. Kenning, that actual adverse possession beyond the boundaries of the tract described in the instrument under which
“It seems to me incongruous to say that a person claims title under a written instrument to land not included in the instrument, and the language of section 82 [our section 47] repels such an idea.”
Under the New York decisions, appellant having been in actual occupation up to the fence — a substantial inclosure sufii'cient to satisfy our section 50 — such occupation was adverse and gave title by adverse possession under sections 46 and 49. '
Moreover, it seems clear to me that there was such acquiescence in this fence as the boundary to now bar respondent from claiming beyond such fence. Lehman v. Smith, 168 N. W. 857.
