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possession, the idea of right is excluded; the fact of possession, and the quo animo it was commenced and continued, are the only tests; and it must necessarily be exclusive of any other right This doctrine has often been repeated.
* * The animo, then, or the intent with which the entry is made, must be bons fide an entry, believing, in good faith, that the land is his and he has the title.” (Livingston v. The Peru Iron Company, 9 Wend. R. 511.) If it appear that the title claimed is subservient to, and admits the existence of, a higher title, the possession is not adverse. (Smith v. Burtis, 9 Johns. R. 180. Jackson V. Johnson, 5 Cow. R. 74.) For example, where a son entered upon land belonging to his father, as the land of the latter, and by his permission, and continued to hold the premises in the hope that his father would convey to him by deed, or devise to him by will, the supreme court of New York held, that such an occupation lacked all the essential attributes of an adverse possession, and could not have the effect to avoid a deed from the father, nor would it, by a continuance of twenty years and upward, ripen into a title. (Howard F. Howard, Jr. 17 Barb. R. 663.) To constitute an adverse possession, it is not necessary that the title under which the party claims should be a good one, but it must be under color and claim of title exclusive of any other right; and the possession must be adverse to the one who is entitled to the possession. (Roseboom v. Tan Vechten, 5 Denio's R. 424, 425, 426. Clarke v. Hughes
, 13 Barb. R. 147. Mosher v. Yost, 33 ib. 277.)
Possession of lands by one entitled to possession in right of his wife, or as tenant by the curtesy, will be presumed, in the absence of proof to the contrary, to be held by virtue of such right
, and not adversely, although the occupant holds a void deed purporting to give him a title in fee. (Corwin v. Corwin, 6 N. Y. R. 342.)
Any possession of land, which is accompanied by the recognition of a superior title still existing, cannot be adverse to that title
. But where a person takes possession under a parol agreement for a purchase, and pays for the land, or purchases it and takes a deed which is defective, the possession of the purchaser which inures is prima facie under a claim of title in himself, and is therefore adverse. (Griswold v. Butler, 3 Conn. R. 246. South School District v. Blackeslee, 13 ib. 227. French v. Pearce
, 8 ib. 439. Bryan v. Atwater, 5 Day's R. 181.)
Where it appeared merely that the defendant had been in possession of the land in question by virtue of a parol gift from the owner, it was held by the supreme court of errors of the state of Connecticut that his possession was to be deemed constructively to have been in subordination to the legal title, and therefore under and not adverse to such owner. But where it further appeared, that to the possession of the defendant was superadded the fact that it was exercised by him under a claim of title in himself, it was held that this fact rebutted the presumption that he occupied under the owner or any other person, and showed, therefore, that the possession was adverse. And it was declared that an entry and possession by a party, under a claim of title in him.
a self, by virtue of a void grant, whether by parol or otherwise, is not less adverse than if possession were taken and held without any color of title whatever. (Comins v. Comins, 21 Conn. R. 413.)
The doctrine has been laid down by the supreme court of errors of the state of Connecticut, that when a party by means of a dam on his own land has thrown the water back upon the land of the adjoining owner, and has continued to do so for the period prescribed by the statute of limitations, without objection on the part of the latter, the law will presume a grant to the owner of the dam of the right to flow the adverse party's land, because it is not to be supposed he would have suffered such a continued injury to his land without objection, unless the owner of the dam had acquired the right. But it was held, that, when a riparian proprietor has used a water privilege for more than the statutory period, but in such a manner as to do other riparian proprietors no injury and give them no right to interfere, the proprietor so using the same acquires thereby no rights against such other proprietors. The use of the water is entirely consistent with a recognition of the title of the other proprietors, and cannot therefore be adverse. The use is not under a claim of the entire title, but is consistent with, and subservient to, a higher title, and however long continued can never become adverse. (Parker v. Hotchkiss, 25 Conn. R. 321.) The doctrine of adverse possession is to be taken strictly. Such a possession is not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner. No title by such possession can be acquired unless the party has the actual use and occupation of the land in the manner
prescribed by custom or by statute, nor anless the owner has so lost his possession that he can maintain an action to recover it. It must be made to appear that the possession was under :a claim or color of title, hostile to the title of the true owner, and a claim of the entire title. (Huntington v. Whaley, 29 Conn. R. 391. And vide Stevens v. Rhinelander, 5 Robertson's R. 285. Watson v. The New York Central Railroad Company, 6 Abb. N. S. R. 91.) The general doctrine is, that possession is not deemed adverse unless the occupant entered under claim of title exclusive of any other
and sometimes the rule is enacted by statute. In the state of New York, the supreme court recently held, that a grantee, by
. accepting a deed containing an exception of certain lands pre viously sold and conveyed to another, and then entering into the possession of the lands thus excepted, will be deemed in law to have entered in subserviency to the title of the grantee of the excepted land, and to continue to hold in subserviency thereto, unless he can establish the contrary, by some clear and unequivocal act or claim of title in himself. (Rosseel v. Wickham, 36 Barb. R. 386. And vide Fosgate v. Herkimer Manufacturing and Hydraulic Company, 9 ib. 287. Same Case, 12 ib. 352.) There are some exceptions to this doctrine by reason of the peculiar phraseology of the statute, but, as a general rule, the possession of land to be adverse must be under claim of the entire title. And accordingly it has been held by the supreme court of the city of New York, that, when title is claimed to the same lands by different parties, under conflicting grants from the same source, and each grant is upon the condition that the grantee therein is the true owner of certain adjacent lands, the possession of the land in dispute by one of the parties, who is not the true owner of the adjacent lands, cannot be deemed an adverse possession, 80 to cause such possession to ripen into a title as against the other grantee. (Toole v. Palmer, 1 Abb. R. N. S. 81. Same Case, 1 Robertson's R. 437.) And upon the same principle, the same court held, that, where the corporation of the city of New York conveyed the same premises to different parties, upon the condition that each grant should be null and void, unless the grantee was the owner of the adjacent lands, the grantee who did not own the adjacent lands could not acquire title by possession under his grant alone
, as against the grantee who did own the adjacent lands. (Torolev. Tolan, 1 Rob. R. 473.) So, also, upon a similar principle
court of appeals of the state of New York held, that the grantees of a portion of a tract of land fronting on a road, under a deed
a which reserved to the plaintiff's grantors a right of way over 80 much of said road as was within the premises in which the easement was reserved, inclosed and occupied the road for more than twenty years, during which time, the land of the plaintiff, being wild and unoccupied, he had no occasion to assert his right of way, could not claim such possession to be adverse to the plaintiff's right of way. (Smyles v. Hastings, 22 N. Y. R. 217.)
As has often been asserted, it is not requisite that the claim under which a possession of land is commenced should be valid. It is sufficient if the party “clearly, unequivocally and notoriously” claimed absolute title to the exclusion of all right, title or interest in the true owner. It is wholly immaterial whether the claim upon which an adverse possession is founded is made upon a valid or void instrument; nor indeed is it necessary, except in cases of constructive occupancy, that the claim should be founded upon any written instrument whatever. But the possession must be under a claim of the entire title, and the same must be in open hostility to the true title. (Vide Harpending v. The Reformed Protestant Dutch Church, 16 Peters' R. 455. Humbert v. Trinity Church, 24 Wend. R. 587. Clapp v. Bromagham, 7 Cow. R. 530. Bogardus v. Trinity Church, 4 Sandf. Ch. R. 633. Kent v. Harcourt, 33 Barb. R. 491.) To constitute a possession adverse, the party setting up the possession must, in making his entry upon the land, act bona fide ; he must rely on his own title; he must believe the land to be his, and that he has title thereto, although his title may not be rightful or valid. (Livingston v. The Peru Iron Company, 9 Wend. R. 511.) The actual possession and improvement of the premises, as owners are accustomed to possess and improve their estate, without any payment of rent or recognition of title in another, or disavowal of title in himself, will, in the absence of all other evidence, however, be sufficient to raise a presumption of his, the occupant's, entry and holding, as absolute owner. (La Frombois v. Smith, 8 Cow. R. 589.)
POSSESSION TO BE ADVERSE MUST BE MARKED BY DEFINITE BOUNDA
RIES — WHEN A CONSTRUCTIVE POSSESSION MAY BE ADVERSEREQUISITES OF A CONSTRUCTIVE POSSESSION — RULE IN CASES OF A MIXED POSSESSION.
OFTENTIMES the statute defines what the character of the occapancy of lands shall be, in order to render the enjoyment thereof adverse; but, as a general rule, a possession to be adverse must be marked by definite boundaries; and where there is no claim of title founded upon a written instrument, or a judgment or decree, there must be a pedis possessio, an actual occupancy, or a substantial inclosure of the lands, which is definite, notorious and certain, to constitute an adverse possession. The inclosure, however, need not be by an artificial fence or structure, for, if the land is fenced on three sides, and the fourth is bounded by a ledge of rocks from two to three hundred feet in height, snch ledge will be deemed s part of the inclosure, as much as though it were an artificial fence. With such a boundary to his possession, no man would regard an artificial fence as necessary. (Becker v. Van Valkenburgh, 29 Barb. R. 319.)
In an early case before the old supreme court of the state of New York, it was declared that to constitute an adverse possession of land, not included in a grant of it, there must be a pedis possessio, or substantial inclosure; but that the inclosure need not be by an artificial fence, or other erection. A river, a mountain or continued ledge of rocks, or other natural obstruction, sufficient to prevent the intrusion of cattle, is enough. In delivering the opinion of the court, Woodworth, J., said: “The plaintiff is entitled to recover the small parcel of land lying between the two acres and seventeen rods and the river, unless the deed from Palmer to Jennings is inoperative, in this respect, by reason of an adverse possession at the time it was executed. The boundaries in the defendant's conveyance do not include this parcel. He cannot, therefore, rest on the ground of a good constructive possession, but must make out a pedis possessio, or actnal occupancy, with claim of title. The adverse possession must be marked by a substantial inclosure, and continued down, to render it available.