Capps v. Merrifield

The proofs clearly show such an occupancy on the part of defendant Loftus and the firm of Christopher Loftus, his predecessors, as constitutes adverse possession. Mr. Loftus makes no claim of title. It is insisted on his behalf, as well as on behalf of the defendant Merrifield, that the possessory rights acquired by him as against the plaintiffs inure to the benefit of his landlord and establish title in him. The test to be applied is: Was Loftus in possession because of his lease from Merrifield, or was his original entry a trespass by him as an individual? The lease did not cover the land in dispute. While there *Page 199 is no direct evidence that Mrs. Merrifield, who executed it, believed that the land leased extended westward to the alley, or that Loftus so understood, we think there was sufficient evidence from which such an inference might fairly have been drawn by the jury. Mr. Loftus testified: "Q. You are one of the defendants in this case, are you not? "A. I am. "Q. And it is true, is it, that you are in the grocery business down here? "A. Yes, sir. "Q. On Washington avenue, and are you occupying the premises in question? "A. Yes. "Q. How long have you been in business in the premises where you are now located? "A. Since 1900, 23 years. * * * "Q. Since going into this building in 1900, what kind of business have you conducted on the premises? "A. Grocery business. "Q. And have you occupied it continuously since you went there in 1900? "A. I have. "Q. Under a lease or leases from the Merrifields? "A. Yes, sir. "Q. I have reference to the land which is in question here, lying just back of the Merrifield store, 22 feet. During that time you have occupied these premises what if any use have you put this land in question to just immediately back of the store? "A. I have used it for receiving freight, goods and delivering, and for storage and for piling empty boxes." He then testified as to the nature of the occupation of the land in dispute, and that he had erected small buildings for the storage of kerosene and gasoline thereon. He was then asked: "Q. When were those houses constructed on this property? "A. Well, when we went in business we had it constructed, *Page 200 when we were getting ready to go, that was in 1900. "Q. Prior to the time you actually went into business and opened up your store? "A. Yes." It thus appears that before obtaining possession of the store building they constructed these buildings on the land in dispute. They were of a somewhat permanent nature, having concrete floors. A cement coal shute was also put in. We think it may fairly be inferred that these tenants then believed their lease covered the ground on which these improvements were put. It also appears that the occupants of the adjoining property desired to project a fire escape, then being constructed, on the land in dispute. To do so, they sought and obtained permission from Loftus. It seems clear that such permission was granted by him on the assumption that he was occupying the land under his lease. It also appears that the Capital National Bank, who owned the land adjoining on the south, had paved the alley in the rear of its land and desired the pavement continued to the north. Mr. Loftus testified: "They had built there a new building extending along the alleyway there and they wanted to pave their part of it in front, and they wanted to know if we would pave our part of it and I told them we would and I took it up with Mr. Merrifield and he told me to go ahead. * * * I told them I would ask Mr. Merrifield and if he wanted to pay for it we would do it. Mr. Merrifield said he would, it was all right to go ahead. "Q. Do you know that afterwards Mr. Merrifield did pay for it? "A. Yes, sir. "Q. State how you know that? "A. My recollection is that the bank sent the bill to my bookkeeper and Miss Bailey paid it and Mr. Merrifield gave her a check for it. *Page 201 "Q. In other words you paid it and Mr. Merrifield paid you? "A. Yes, sir." Unless Merrifield believed that he had title to the land back to the alley, it is inconceivable that he would have paid for this paving. John Clear, a truckman who had delivered goods to the occupants of the store for many years, was asked: "I ask you what, if any, occupation, or use has been made of that land by the tenants of that Merrifield property? "A. They have used it all of the time as long as I know anything about it, they have used it, whoever was in there, whoever rented it." Mr. Loftus was not interrogated as to whether he understood his lease covered this land. It may be noted, however, that the question as to whether the possession of the land by the tenant would inure to the benefit of the landlord unless intended to be included in the lease was apparently not raised on the trial until after the proofs were closed. From the evidence submitted, we think the jury might have found that the Merrifields believed the land in question was covered by their deed and that they and Loftus understood that the right to occupy it passed to him under his lease. And, if so, the possessory rights acquired by Loftus would inure to the benefit of his landlord. The trial court was apparently of the same opinion. The following instruction was given: "I will say to you, members of the jury, that in determining when this adverse possession commenced that an independent adverse occupation by a tenant of the property not purporting to be covered by the terms of the lease and not based upon any authorization purporting to be conferred thereon, by the lessor does not inure to the benefit of the landlord." The defendants preferred the following request: *Page 202 "In considering the question of adverse possession for the statutory period of time, I charge you, that if you find that adverse possession, as I have explained to you, has been held continuously by the Merrifields and their tenants for a period of fifteen years or more at any time prior to the commencement of this suit, then you should find for the defendants in this case. And in considering whether defendants have held the property in question, openly, adversely, notoriously and hostile, you should consider the general recognition by the public of such holdings, that is, consider the fact, if you find it to be a fact, that Merrifield has paid for the paving on the back of this property and in the alley, and that Merrifield's permission was sought by the tenants of the plaintiffs to build a fire-escape over all of the property in question, and that Merrifield's permission was sought and recognition given to Merrifield's rights, in the use of this land for alley purposes. In other words, you may consider any recognition of ownership and control accorded Merrifield in connection with the use and occupancy of the land in question as indicating Merrifield's claim of right to occupy, own, control, etc., to the exclusion of all others." An assignment of error was based on the refusal to give this request. While the charge as given correctly stated the law by which the jury should be governed, we feel constrained to hold that this request should have been given. The legal question presented was a little difficult for the lay mind to comprehend. The facts which they might consider in determining the question of fact to which the law applied was fairly stated in the request, and the attention of the jury should have been called to them. For this reason the judgment will be reversed and a new trial ordered. The costs taxable in this court shall abide the result thereof. McDONALD, BIRD, MOORE, STEERE, and FELLOWS, JJ., concurred with SHARPE, J. *Page 203