146 Ind. 534 | Ind. | 1897
The appellant sued to quiet her title to an eighty acre tract of land in Lake county, and the appellee, Burbanks, by cross-complaint, sought to
The facts found disclose that the appellee, in October, 1857, became the owner of the legal title to said lands; that his deed was properly recorded in January, 1858; that he never conveyed or transferred his said title; that he was not, and has not since been a resident of Lake county; that he did not see said lands excepting in the years 1858, 1880 and 1891, when during each of said first two years he visited said lands once and, in the last of said years, he built a small frame house thereon; that said lands were wild, uncultivated and unimproved and were never in his actual possession or occupancy prior to June, 1891; that for the years 1859 and 1860 said lands were sub-' ject to taxation in said county and were assessed in the name of said Burbanks, but said taxes, nor any taxes thereafter assessed were ever paid by him. For the years named said taxes became delinquent, and in January, 1861, said lands were sold therefor, by the treasurer of said county at public sale, and were purchased by one Dibble, who received a deed therefor in 1861, said lands never having been redeemed from said sale. Dibble sold to Arvida Worthley in March, 1868; Arvida Worthley conveyed to one Rose in January, 1873, and Rose, on the same day, conveyed to the appellant. The deeds of said several conveyances were duly entered for record in Lake county near the dates of their execution, and since Jime 16, 1869, said lands have been entered for taxation against said
“Said Arvida Worthley, in the summer of 1868, entered upon said land, claiming to own the same, and caused said land to be surveyed, and chopped and grubbed the brush out along the line thereof all the way around said tract, and caused stakes to be driven at the corners and some places along the line for the purpose of marking the line of said land, all of which remained visible to the common observer for four
In January, 1873, when said land was conveyed to the appellant, and when she and her husband, said Arvida, moved to Michigan City, from Tolleston, where they had theretofore resided, she, this appellant, put William L. Worthley, her son, in charge of said lands and authorized him to look after and care for the same; that from said date, each year, until and including 1878, said son visited said lands three or four times, at each visit going upon and over said lands, claiming at all times, openly and notoriously, that the appellant owned said lands, and during the same period and at all times thereafter she claimed, openly and notoriously, to own said lands. That in 1878, when her said son moved to a western state, she employed one Gibson, a resident of Tolleston, and authorized him to look after and take care of said land for her, and from that time to the time of the trial he went upon said lands several times each year for the
The question presented in this court is as to whether the facts so specially returned by the jury disclosed such adverse possession, by and in favor of the appellant, as to preclude the reassertion, by the appellee, of his title acquired in 1857.
In this State the statute of limitation, Burns’ R. S. 1894, section 294 (R. S. 1881, 293), denies a right of action for the recovery of real estate after twenty years from the accrual of the cause of action, and' this is the provision upon which the holder of lands in adverse possession for the term of twenty years is held to be the owner.
There is no question but that the appellant held, for the required period, the color of title to said lands, and that if she occupied or possessed, as required by the rule in adverse possession, any part of the land such possession will, under such color of title, be held, constructively, to include the whole of such lands. Hargis v. Inhabitants of Con. Tp., 29 Ind. 70; Jeffersonville, etc., R. R. Co. v. Oyler, 60 Ind. 383; State v. Portsmouth Savings Bank, 106 Ind. 435; Roots v. Beck, supra; City of Noblesville v. Lake Erie, etc., R. R. Co., 130 Ind. 1, 31 Am. St. 412; Herff v. Griggs, 121 Ind.
The important inquiry, upon the facts found, is as to whether the appellant occupied or possessed, under the rule in adverse possession, any part of the land for the required term. Appellee insists that actual occupancy is necessary, while the appellant urges that occupancy is necessary only where it is possible with some return from the occupancy or use, and is not required if the land is not susceptible of some remunerative use. That there was not an actual occupancy for twenty years by or on behalf of the appellant or her grantors is not in doubt, nor is it questionable that the lands were not available for any productive use.. The precise inquiry, therefore, is, wha,t is meant by “possession,” as applied to lands of the character of those in question here. It is manifest that there can be no absolutely unvarying rule with reference to every class of real estate, and that the required occupancy of or dominion over a section of desert lands, or of a mining camp, a non-navigable lake, a prairie, a forest, a fertile farm in a high state of cultivation, or a town lot would not answer as to a lot in the business center of a populous and thrifty city. As said in Ewing v. Burnet, 11 Peters, 41: “So much depends on the nature and situation of the property, the uses to which it can be applied, or to which the owner or claimant may choose to apply it, that it is difficult to lay down any precise rule adapted to all cases.” And, as said in the early case of Robison v. Swett, 3 Me. 316, wnere “lands being wild and uncultivated, the jury were not to expect the same evidence of occupancy which a cultivated farm would present to them.”
In this connection it is said in 2 Wood on Limitations (2d ed.), section 267: “The kind of possession which will be sufficient must depend largely upon the
It is true, as counsel for appellee insists, that in no one of these cases were there such slight acts of dominion over the lands in dispute as were exercised over those here in controversy during the last few of the twenty years from the first assertion of title by Dib
In Wood on Limitations, section 268, it is said: “In determining the question of adverse possession, the jury may take into consideration the nature and situation of the land. And the placing of deeds on record, passing over the tract, employment of agents living in the neighborhood to look after it and prevent trespassers upon it, payment of taxes continuously under claim of title, and the like,may be considered by them; and it is not always necessary to prove actual occupation by the claimant; but the acts referred to would not be sufficient of themselves to establish title by reason of adverse possession, unless the land was un
The general proposition involved in the authorities we have cited upon this branch of the question was recognized by this court in Collett v. Board, etc., 119 Ind. 27. It was there said: “An entry upon land with the intention of asserting ownership to it, and continuing in the visible, exclusive possession under such claim, exercising those acts of ownership usually practiced Toy owners of such land, and using it for the purposes to which it is adapted, without ashing permission and in disregard of all other conflicting claims, is sufficient to make the possession adverse.” (The italics are our own.)
If the owner absents himself from lands of the character of those here involved and ignores for thirty odd years the known annual tax claims of the county and State against the land, he can but anticipate outstanding colorable adverse title; he cannot expect to be advised from a view of the land thát it is in the possession of another, since none of the evidences of occupancy applicable to productive lands are required by law or would be probable from the customs of owners of such lands. The public records of conveyances, transfers and payments of taxes would be a natural and proper source of knowledge, and the open and notorious claim of title by another, evidenced by the general understanding of the people of the neighborhood, gained from the frequent proclamations of the claimant, would afford another means of information. If he visited the land he could see that the ancient timber was gone and that all of value had gone with it. This, while not always sufficient notice of an adverse claim or possession, would be a circumstance, which,
It is said, however, that by the decision of this court in State v. Portsmouth Savings Bank, supra, the law has been declared to be at variance with the proposition that actual occupancy is not indispensable where it may not be had with beneficial úse. On page 461 of the report of that case it was said: “It was impossible for Bright to have had possession of the bed of the lake, unless he in some way had constructive- possession, because, during the time that he claimed to be the owner, it was almost wholly covered with water.” (The italics are our own.) This statement, it will be observed from a careful reading of the opinion, was made in distinguishing between constructive possession under color of title and actual possession without color of title, with reference to the area to be included in either possession. Standing alone it would not follow that there could be no adverse “possession because” the land “was almost wholly covered with, water.”
The case of Whitaker v. Erie Shooting Club, supra; Brophy v. Richeson, 137 Ind. 114, and perhaps other cases, illustrate the proposition that there may be a possession of lands covered by water. The question of a,dverse possession in that case, however, was decided upon the absence of evidence tending to show possession for the required period, and not because such
We conclude that the court erred in rendering judgment upon the verdict in appellee’s favor, and the judgment is reversed, with instructions to render-judgment upon said verdict in favor of appellant.