Burke v. Hammond

Mr. Justice Gordon delivered the opinion of the court, October 12th 1874. The testimony in this case does not raise the question of title under the Statute of Limitations. The evidence does not show that either of the parties maintained such an actual and continuous possession of the land in dispute as would bar the right of the warrantee. The case therefore turns upon two distinct propositions : First, wererbhe plaintiff’s vendors in the actual possession of [179] the land in controversy, either by themselves or their tenants, when the defendant settled upon it ? In determining this question the occupation of the land by John Croyle, from 1819 to 1829, is not to be considered, forasmuch as that occupation was abandoned at the latter date, neither does it in any way appear to be connected with the plaintiff’s title. In like manner must we exclude the coaling operations of Dr. Shoenberger, for they lack both the permanency and continuity of that kind of possession which, for the time being, is equivalent to title. The matter then narrows itself down to the inquiry whether, at the time the defendant entered upon the disputed premises, he intruded upon the actual possession of those under whom the plaintiff claims. It will be observed, in the determination of this proposition, that we are to regard the fact of possession alone, and this must be evidenced by acts indicating permanency of occupation, such as residence or cultivation. Where the possessor leaves the premises, his intention to return, of itself, will not avail to continue his possession ; there must, in order to produce this effect, be. some indication left in or upon the property which will give notice of such intent; otherwise abandonment will be presumed. What those indications are which signify an intent to continue the occupancy will readily suggest themselves even to a casual observer. Buildings kept in a good state of repair, though not occupied, and fields properly fenced, so as to exclude marauding cattle, though not under immediate cultivation — these, and many other things of a like character, notify us unmistakably that the possession has not been abandoned. We have thus been particular in stating the governing principles of cases like the present, in order that the court may have as clear a view as possible of our ideas, and thus avoid a resubmission to the jury of such facts as the Croyle improvement, the timber-cutting by Dr. Shoenberger, and the claiming of the Johnston tract as part of the Furnace property, as indications of actual possession. The two latter facts would be pertinent in connection with the Bice improvement, to show the extent of the plaintiff’s claim, but for no other purpose. This evidence is admissible under the rule, that where one enters upon a tract of land, claiming the whole, though he occupies only a part of it, nevertheless his possession will be treated as co-extensive with his claim. The second proposition presents the following question: Taking the whole of the evidence together, was there such a long-continued assertion of title, by user of the products of the land in dispute, payment of the taxes, &c., as would raise a presumption of a grant from the warrantee to those under whom the plaintiff claims? The cases cited by the learned judge who tried this case are in point: Taylor v. Dougherty, 1 W. & S. 824 ; Hastings v. Wagner, 7 Id. 216; Fox v. Thompson, 7 Casey 174. A continuous claim [180] and payment of taxes for twenty-one years, have been held to raise such a presumption as against an intruder. “ The rational ground for presumption,” says Chief Justice Tilghman, in the case of Kingston v. Lesley, 10 S. & R. 383, “ is when the conduct of the party out of possession cannot be accounted for without supposing that he has conveyed to the one in possession.” So in Warner v. Henby, 12 Wright 18T, it is said by Chief Justice Thompson: “ These presumptions, when ripened by time and the silence of the warrantee, supply the place of a conveyance where there have been continuous acts of ownership on part of the claimant. That period is not less than twenty-one years.” And again, on the same page: “ In other words, no presumption runs in his favor more than that of anybody else, if he does not entitle himself to claim it by sufficient acts for a sufficient length of time.” From these authorities we learn that this presumption of grant arises only in favor of him who persistently and continuously claims the land fór a long period of time, exercising over it from time to time such acts of dominion as the character thereof warrants and paying the taxes thereupon assessed. Occasional invasions of the property, which may amount to mere trespasses, will not suffice to raise this presumption, neither will the occasional payment of taxes. Whether the plaintiff and his predecessors in title brought themselves within this rule, was a question properly submitted to the jury. The court, however, committed an error in admitting the evidence of Michael Reed, to prove that at one time he saw among the papers of Dr. Shoenberger a deed to him for the James Johnston tract. The defect in this testimony is that it does not inform us when or by whom it was executed, or indeed whether or not it was ever executed by any one. This was clearly not evidence, as it neither showed title nor served to raise a presumption of grant. The proof amounted only to evidence of an unexecuted paper that could avail' for no legitimate purpose whatever, and should therefore have been excluded. We discover nothing else that needs correction, but for the errors indicated the judgment is reversed, and a venire facias de novo awarded.