35 Kan. 85 | Kan. | 1886
The opinion of the court was delivered by
Simon Abeles leased to T. H. Winn lot 9 in block 49, in the city of Leavenworth, upon which there was a one-story brick building, for the. term of two years, commencing August 1,1881. Winn took possession at once, and used the building as a dry-goods and notion store, and occupied it for that purpose until the building fell, on April 4,1883. The falling of the building injured his stock to some
In St. Louis University v. McCune, 28 Mo. 481, an alleged encroachment beyond the boundary line was under consideration, and the court held that if the party erected an improvement accidentally upon the land of another through mistake or ignorance of the correct line dividing the tracts, and without intending to claim beyond the true line, the occupation thus taken and the possession which followed did not work a disseizin.
In Hitchings v. Morrison, 72 Me. 331, a case where a party claimed title to a strip upon an adjoining lot upon the basis of adverse possession, it was held that if the occupation was not accompanied by a claim of title in fact, but was merely inadvertence or mistake as to the extent of his line, without
In Howard v. Ready, 29 Ga. 152, it was held that a possession originating in and continuing under a mistake or misapprehension as to the true lines dividing two lots of land, will not ripen into statutory title. The current of the authorities runs in the same line. (Rickard v. Hibbard, 73 Me. 105; Brown v. Cockerall, 33 Ala. 38; Enfield v. Day, 7 N. H. 457; Riley v. Griffin, 16 Ga. 141; Brown v. Gray, 3 Greenl. 126; Walbrunn v. Ballen, 68 Mo. 164; Sedgwick and Wait on Trial of Title to Land, §§ 759, 760; Tiedeman on Real Property, § 699.)
Counsel for plaintiff insists if the occupancy continued during the statutory period it will constitute an adverse holding, even if the building was extended over the boundary line through a mistake, and cites French, v. Pearce, 8 Conn. 439, and some other authorities, to sustain his position. ' The authorities which he cites do not go to the extent claimed. It is evident from the foregoing authorities that in a question of boundaries, possession does not count for as much as where the whole tract is held adversely against a claimant. The authorities which he cites only go to the extent of holding that property occupied by a mistake, and which is claimed by the occupant as his own, will constitute an adverse possession. None of them hold that the intention to appropriate the property occupied as that of the occupant can be dispensed with. In French v. Pearce, supra, so much relied on by counsel, it was expressly held that the intention of the possessor claiming adversely is an essential ingredient, and that the person entering upon the land under a mistake must actually hold it as his own. The same court at a later day, in passing upon a case where a division fence between the lands of A and B was a stone wall three feet wide set wholly on the land of A, and B had for more than fifteen years held exclusive possession of his own land up to the wall, treating the center of the wall as the dividing line, and believing it to be so, but with no knowledge of such claim on the part of A, and with no other possession of the ground covered
“That if one land-owner sees fit to erect a house at the confines of his own land, it is his own folly, and he cannot, by being prior in point of time, prevent his neighbor from building there also, and the only restriction imposed upon the adjacent owner is that he must not negligently or carelessly excavate upon his own land, but if he proceeds with ordinary care he will be excused from liability, no matter how great the damage of his neighbor’s buildings.” (Wood’s Law of Nuisances, § 185.)
There are numerous other authorities which go to the same extent,.many of which are referred to in those that havebeeu cited, and it is universally held in all that in cases like the present one, only reasonable care and diligence are required of
It is finally urged that the court erred in permitting Abeles to testify that he acted under the advice of E. T. Carr, who was an architect, in the steps taken to protect his building. The jury specially found that Mr. Carr was a skillful and competent architect, and also that the Avail which was the subject of agreement between Abeles and Colyer, Avas reasonably necessary for the protection of the building occupied by Winn. In determining what action he should take to protect, the building, it was proper for Abeles to consult a practical and skillful man who had had experience in such matters, dnd to regard his advice in the means employed to accomplish his purpose. The testimony complained of Avas therefore competent to prove that he acted Avith reasonable caution and with good faith in the steps taken by him.
We think there should be an affirmance of the judgment rendered by the district court, and it is so ordered. ■