Johnston v. City of Albuquerque

OPINION OF THE COURT. MILLS, C. J. This is a suit brought by appellants to restrain the city of Albuquerque from trespassing upon and removing any soil, gravel, clay, or other substance, from the piece of land in controversy. The prayer of the complaint also asks that the title of the appellant, Johnston, to said land be established and quieted against the city of Albuquerque. Previous to the passage of the act of Congress of February 18, 1901, which act is entitled, “An act to confirm in trust to the city of Albuquerque, in the Territory of New Mexico, the town of Albuquerque grant, and for other purposes,” the title to the land in question, which was within the limits of this grant, was in the United States, against whom the statute of limitations did not run. The act however quitclaimed to the city of Albuquerque said grant, in trust, for the benefit among others, “of all persons, claiming title to their individual holdings of real estate at the time of the acquisition of New Mexico under the treaty of Guadalupe Hidalgo and their successors in interest, or who have been in open adverse possession for the period of ten years prior to the passage of this act.” There was but a single issue before the learned court below when the cause was tried, to-wit: Had Johnston been in open continuous, adverse possession of the land in question, for the period of ten years, at any time before the date of the bringing of this suit (July 30, 1901), so as to acquire a title to the premises by prescription? We take it that under the act of Congress the “open adverse possession” necessary to acquire title by prescription to this land must be the same as would be required to have the statute run against the real estate owned by a private individual. Nothing appears in the act of Congress to lead us to presume that any distinction was intended to be made, or that any less strictness was required to acquire title to this land by adverse possession, simply because it was conveyed by the national government to the city of Albuquerque, in trust, than if it had been so conveyed to a private individual. Indeed, the use of the word “open” in the act, before the words “adverse possession,” would seem to mean, if it means anything that the lawmaking power intended to add something to the possession required to obtain title by virtue of the statute of limitations, instead of taking anything away from it. Adverse possession of another’s land, is such a possession as when accompanied by certain acts and circumstances, will vest title in the possessor. In all jurisdictions where the determination of what constituted adverse possession has arisen, the decisions and the textbooks are unanimous in declaring that the possession must be actual, visible, exclusive, hostile and continued during the time necessary to create a bar under a statute of limitations (1 Cyc. 981), which time is ten years in the case at bar, as set out in the act of Congress of 1901, supra. Section 2 of chapter 63, Session Laws of 1899, amends somewhat our statute of limitations, but the change is not material to the determination of this case. That an adverse claim to land may ripen into a perfect title by virtue of the statutes of limitations, it is primarily essential that the possession relied on be actual. This has been passed upon by the courts of upwards of thirty of the States of the Union, as well as by the Federal courts. A collection of these cases can be found in 1 Cyc. 982. Actual possession consists in exercising acts of dominion over it, and in making the ordinary use of it to which it is adapted, and in taking the profits of which it is susceptible. Webber v. Clark, 74 Cal. 11; Barstow v. Newman, 34 Cal. 90. The law sets out no particular rules where the statutes of limitations does not prescribe them, which are necessary to constitute acts of dominion. Actual possession is a question compounded of law and fact. Draper v. Short, 25 Mo. 197. Its determination must largely depend upon the situation of the parties, the size and extent of the land, and the purpose for which it is adapted. The only rule which is generally applicable is that the acts relied on to establish possession must always be as distinct as the character of the land reasonably admits of, and must be so exercised as to acquaint the owner, should he visit it, that a claim of ownership adverse to his title is being asserted. 1 Cyc. 985. Where adverse possession is sought to be shown by having the land fenced for the period prescribed by the statute of limitations, such fence must he a real and substantial one (Bonel v. Rollins, 30 Cal. 408), and the land must be completely inclosed, either by natural objects or an artificial enclosure. Goodwin v. McCabe, 75 Cal. 584; East Hampton v. Kirk, 84 N. Y. 215. The building of a fence around land, and then allowing it in a short time to go to decay so that it will, not keep out live stock or trespassers, is not such a possession as will give title by reason of the statute of limitations. By visible possession is meant, that the true owner must have actual knowledge of the hostile claim, or the possession must be so open, visible and notorious, as to give notice to the world that the right of the true owner is invaded intentionally, and with the purpose to assert a claim adversely to his. 1 Cyc. 997. The possession must be exclusive, that is, that the person who claims the property by reason of the workings of the statute of limitations, or those under whom he claims, must have had exclusive possession of it. When the occupation is in common with the public generally, it is not such exclusive possession as will constitute the basis of a title by adverse possession. 1 Cyc. 1025. The possession at its inception must be hostile or adverse to that of the true owner, or although not hostile at its commencement, such acts must be done, as to make it hostile, which must continue during the period of the running of the time of the statute of limitations. In order to perfect a title by adverse possession, such possession must continue for the entire period prescribed by tire statute of limitations. Probst v. Presbyterian Church, 129 U. S. 190. Any bréale or interruption of the continuity of the possession will be fatal to the claim of the party setting up title by adverse possession. 1 Cyc. 1000, and cases cited in note 48. But temporary vacancies in the occupation, caused by the substitution of one tenant for another, which' vacancies are not longer than is reasonable in view of the character of the land, do not constitute interruptions of possession, such as would destroy the running of the statute. Hudgins v. Crow, 32 Ga. 367; Beasley v. Howell, 117 Ala. 499. As heretofore stated this cause was tried by the court without the intervention of a jury, and the court made findings of facts, on which the judgment complained of was based. The findings appear to have been made principally at the suggestion of the attorney for the appellant, and no objection was made to them by the attorney for either party to this action at the time they were filed. We do not think that the evidence shows that any of the five elements necessary to cause the statute of limitations to run were proved by the appellant on the trial below. Martin at first went on the land, believing it to be the property of the United States, as shown by his having filed the so-called “notice of possession” which however he did not sign, but which is introduced in evidence by the counsel for appellant. The only actual possession he had of the land was the small pieces on which the house and stable stood. The fence did not, when erected, enclose the entire tract of land, six hundred feet or more being at the very first left open; the fence was almost immediately allowed to go to decay, so that practically none of it remained. The land was for the greater part of the time used as a common pasturage for those who desired to graze their live stock thereon. After Martin moved away from the house in about the year 1892, it was occupied by appellant and his tenants for less than a year; its windows were boarded up, and finally it was moved away. During nearly all of the time since Martin first went on the land, those who desired to do so have gone on it and have taken dirt and other substance from it at their pleasure. From a careful examination of the entire record, we are of the opinion that the findings of facts made by the learned judge who tried the case below, are amply sustained by the evidence, and that there is no error in the judgment entered thereon. The judgment of the court below is therefore affirmed; and it is so ordered. McFie and Parker, JJ., concur. Baker, A. J., having tried the case below did not take part in this decision.