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by himself of that part, adversely to any other claim, for thirty-six years, and a recognition by the lessor of the existing boundary. Jackson v. Bowen, 1 Cai. (N. Y.) 358.

The possession of a tenant beyond the boundaries of the land contained in his lease can not be regarded as the possession of his landlord, where the latter never had possession of the land, or claimed title to it, even though the tenant believes that he is occupying only the land demised. Holmes v. Turner's Falls Lumber Co., 150 Mass. 535; 23 N. E. Rep. 305 (1890).

The fact that plaintiff's vendor and defendant once agreed to establish a line with reference to the land in controversy, but never executed the agreement, does not affect plaintiff's rights. Evans v. Foster, 79 Tex. 48: 15 S. W. Rep. 170 (1891).

Where the line between adjoining owners is in doubt, but they only claim ownership to the true line, wherever that may be, no title by adverse possession can arise in either, as against the other. Krider v. Milner, 99 Mo. 145; 12 S. W. Rep. 461.

§ 60. What Are Inclosures, Fences, etc.-While the general rule of law requires that the fence by which lands are inclosed should be of a substantial and permanent nature, its character must always to some extent be governed by the nature of the lands to be inclosed.' It has been held that the


fences must be erected by the party claiming adversely, though one erected by an adjoining owner, if on the boundary line, may be sufficient." All inclosures must be entire and complete, and for the purpose of marking the boundaries of the lands in adverse possession, fences must be substantial. A mere brush fence, or one made by felling trees, so that one laps upon another, will not do." But of course what has been said here as to inclosures and fences applies to cases where they are relied upon alone as showing acts of occupancy. It should also be borne in mind that there may be in law a sufficient inclosure of lands without any artificial fence at all. Rivers, mountains, ledges of rocks on one side forming natural barriers, the other sides being inclosed, have been held to form

1 Slater v. Jepherson, 6 Cush. (Mass.) 129; Bates v. Norcross, 14 Pick. (Mass.) 224; Stephens v. Hollister, 18 Vt. 294; 46 Am. Dec. 154; Hale v. Glidden, 10 N. H. 397; Lane v. Gould, 10 Barb. (N. Y.) 254; O'Hara v. Richardson, 46 Pa. St. 291; Hutton v. Shumaker, 21 Calif. 453; Borel v. Rollins, 30 Calif. 408.

3 Soule v. Barlow, 48 Vt. 132; Morrison v. Chapin, 97 Mass. 72: Pope v. Haumer, 8 Hun (N. Y.), 235; 74 N. Y. 24; see Kere v. Hill, 75 Ill. 51.

4 Hale v. Gliddon, 10 N. H. 397; Slater v. Jepherson, 6 Cush. (Mass.) 129; Jackson v. Schoonmaker, 2 Johns. (N. Y.) 229.

5 Becker v. Van Valkenburg, 29

Doolittle v. Tice, 41 Barb. (N. Y.) Barb. (N. Y.) 319.



inclosures which will, with claim of title, constitute an adverse possession. The question as to whether the lands in controversy are held adversely is to be decided upon the sufficiency of all the acts and circumstances of the particular case in evidence and without reference to the insufficiency of any one or more of them.

$61. The Inclosure Need Not Be Continuous.-The law requiring that lands held in adverse possession shall be protected by a substantial inclosure if construed to require a continuous, uninterrupted inclosure for periods required by the statute would in many cases make it impossible to acquire title by adverse possession upon such a construction; if fences are carried away by floods, destroyed by fire, taken down in winter for the accommodation of travel, or removed to prevent them from being swept away by ice and tides, the adverse possession would cease, although they were restored as soon as the circumstances permitted. The statute must have a reasonable construction, and interruptions of this kind do not in law affect the possession of the occupant."

$62. When Possession Is Not Adverse.-Possession can not be adverse if held under a superior title or inconsistent with the estate of the person in possession. The cases involving the question under consideration may be divided into two classes:

(1) Where the occupant is in possession under some superior title, so that his possession is the possession of the owner of the superior title.

(2) When the estate of the occupant and the estate of some other person out of possession form different parts of one and the same estate.

But such possession, though not adverse in its inception, may nevertheless become so when the occupant intentionally commits some act which in law amounts to an ouster or a denial of the right or title of the person under whom he holds. Under the first class of these relations, which we shall presently discuss, naturally fall the relations of vendor and vendee of lands

'Jackson v. Halstead, 5 Cow. (N. Y.) 216; see Pope v. Houmer, 74 N. Y. 240; Becker v. Van Valkenburg, 29 Barb. (N. Y.) 319.

Trustees v. Kirk, 84 N. Y. 215; 38 Am. Rep. 505; St. Louis v. Gorman, 29 Mo. 593; Brumagin v. Bradshaw, 39 Calif. 24.

under contracts of purchase and otherwise-landlord and tenant, trustee and cestui que trust and the like. Under the second class fall tenants in common and the like. In all these relations authorities may be found which maintain the doctrine that the occupant of lands, confessedly in subordination to the title of the real owner, is incapable of changing the character of his possession to an adverse holding by any act of his own, and that in order to deny or dispute the title under which he holds he must first surrender the possession to the person under whom he holds and place him in the same condition in which he was when the possession in question was originally taken. This doctrine was supposed to govern the relations under consideration, and that no lapse of time could lay the foundation for a bar to the right of entry by reason of adverse possession between the parties standing in such relations, or their privies.

The weight of modern authority has settled the law otherwise. The vendee may now disavow the title of his vendor after a breach of the contract under which he holds possession. The trustee may disavow and disclaim his trust. The tenant may deny his landlord's title after the expiration of his lease, and the tenant in common may dispute the title of his co-tenant, and by their acts compel the owner to bring actions of ejectment for the recovery of their estates, within the periods fixed by the statutes of limitations. The only distinction btween these cases and those in which no privity between the parties existed when the possession commenced, is in the degree of proof required to establish the adverse character of the possession. In these cases the possession was taken and held in subserviency to the title of the real owner, and a clear, positive and continued disclaimer and disavowal of the title and assertion of an adverse right, to be brought home to the real owners, are indispensable before any foundation can be laid for the operation of the statute of limitations. Otherwise, the grossest injustice might be practiced; for, without such notice, the owner of the land might safely rely upon the relations under which the possession was originally taken and held, and upon the subordinate character of the possession as the legal result of those relations. The statute, therefore, does not begin to run until the possession, which was before consistent with the title of the real owner, becomes tortious and wrong



ful by the acts of the occupant. These acts must be open, continued and notorious, so as to preclude all doubt as to the character of the holding, or the want of knowledge on the part of the owner. If the owner then neglect to enforce his rights by an action within the period fixed by the statute, the loss is attributable to his own laches, and not to the law.'

Land was conveyed in 1854 in trust for a mother and her two children. On the death of the latter, their interests descended to three half-sisters and a daughter of a half-brother. The defendant is the husband of one of the half-sisters. In 1866, the mother deeded her interest to him, and the trustee conveyed him the legal title, both deeds being in trust for his wife and children. Since then he has held possession of the land. The complainants are the children of another of the half-sisters. The defendant held a power of attorney from her to transact her business in the State from the time he took possession until her death in 1867. In 1873, he bought the interests of the other half-sisters and that of the half-brother's daughter. Held, that during the life of the complainants' mother, the defendant's possession was not adverse to her. Day v. Davis, 64 Miss. 253; 8 So. Rep. 203 (1890).

A tenant at will, with his family, remained in possession of land until his death, and thereafter his widow continued in possession for more than twenty-one years. Held, that, as her husband's possession was in subordination to the title of the rightful owners, her continued possession was of the same character, and that, in the absence of evidence that she had renounced the privity between her and the rightful owners, she could not avail herself of the statute of limitations. Mitchell v. Murphy, 43 Fed. Rep. 425 (1890).

Where the preponderance of the evidence shows that defendant's ancestor, through whom he derives title, entered upon the land in controversy as tenant of plaintiff's ancestor, and did not renounce his allegiance until shortly before the suit was brought, defendant can not set up title by adverse possession nor dispute the validity of the plaintiff's title. Miller v. South (Ky.), 14 S. W. Rep. 361; Am. Dig. 1891, 56.

First class: Under the first class will be considered the relations of principal and agent, landlord and tenant, trustee and


1 Tyler on Ejectment, 876; Oster- Adams v. Fullam, 43 Vt. 592; 47 Vt. man v. Baldwin, 6 Wall. (U. S.) 116; 558; Public Parks, etc., ex parte, 73 Herman v. Smaltz, 7 Fed. Rep. 566; N. Y. 560; Farrish v. Coon, 40 Calif. 10 Bissell (U. S.), 323; Walker v. 33; Gassam v. Donaldson, 18 B. Mon. Crawford, 70 Ala. 567; Beard v. Ryan, (Ky.) 230; Goldcleugh v. Johnson, 78 Ala. 37; Moring v. Ables, 62 Miss. 34 Ark. 312; Furlong v. Garrett, 44 263; Adair v. Adair, 78 Mo. 630; Wis. 111; Blackwell v. Ryan, 21 S. Doe v. Jefferson, 5 Del. 477; Nowlin C. 112; Den v. Kipp, 2 Dutch. (N. J.) v. Reynolds, 25 Gratt. (Va.) 137; 351; Harris v. Richey, 56 Pa. St. 395; Hudson v. Putney, 14 W. Va. 561; Nords v. Dill, 11 Ohio, 455; Elliott v. Williams v. Cash, 27 Ga. 507; Jack Frye, 62 Ill. 507; Clouse v. Elliott, son v. Foster, 12 Johns. (N. Y.) 490; 71 Ind. 302. And see authorities cited Brown v. King, 5 Met. (Mass.) 173; later on under sections treating of Catlin v. Decker, 38 Conn. 262; these relations under special headings.

cestui que trust, vendor and vendee, mortgagor and mortgagee, and other like relations.

§ 63. Principal and Agent.-Like other similar relations the possession of an agent is the possession of his principal. It will not be adverse until there has been an open disclaimer and the assertion of a hostile title and notice thereof to the principal or those claiming under him.'

§ 64. Landlord and Tenant.--As distinguished from tenants in common of lands and tenants for life, the relation of landlord and tenant in the ordinary legal acceptation of the term is another instance where the possession of the occupant is the possession of another, that is, the possession of the tenant is the possession of the landlord. When this relation exists, the possession of the tenant is consistent with the title of the landlord, and the mere neglect of the landlord to demand the rent, or of the tenant to pay the same, is not sufficient to bar the landlord's title, although, if long continued, it may bar the right of the landlord to collect his rents."

65. When a Tenant's Holding Becomes Adverse.-Before the possession of a tenant can become adverse to his landlord he must intentionally do some act equivalent to a surrender of the premises and bring home to his landlord the knowledge of his adverse claim. The tenant may show that the title of his landlord has terminated, either by its original limitation, or by a conveyance to himself of a third person, or by the judgment and operation of law. If the landlord transfers the estate, the allegiance of the tenant is due to the grantee. If the estate is vested in a third person by operation of law, the tenant holds the possession subject to the title of such third person. He may buy in the premises under a judgment against the landlord and set up the title thus acquired in bar of an action against him. In such cases the relation of landlord and tenant is dissolved and the tenant no longer holds under his landlord."

1 Fountain, etc., Co. v. Phelps. 95 Ind. 271; Bancum v. George, 65 Ala. 259; Atkinson v. Patterson, 46 Vt. 750: Whiting v. Taylor, 8 Dana (Ky.), 403; Simmons v. Lane, 25 Ga. 178.

Van Duyn v. Hepner, 45 Ind. 589; Campbell v. Shipley, 41 Md. 81; Whit

ney v. Edmonds, 94 N. Y. 309; Catlin v. Decker, 38 Conn. 262; Dothard v. Denson, 72 Ala. 541: Abbey, etc., Asso. v. Miliard, 48 Col. 614.

3 Tilghman v. Little, 13 III. 239 (1851); Jackson v. Doris, 5 Cow. (N. Y.) 123; England v. Slade, 4 D. & E. (Eng.) 682; Jackson v. Rowland, 6

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