Bolln v. Colorado & Southern Railway Co.

Beard, Justice. The defendant in error (plaintiff below) brought this action against the plaintiffs in error (defendants below) to recover the possession of a small tract of land situated in Converse County. The trial was to the court, without a jury, and the court found and gave judgment for the plaintiff, and defendants bring error. On the trial it was stipulated in writing between the parties that on January 13, 1891, the Union Pacific, Denver & Gulf Railway Compan}'', a corporation, acquired by purchase the fee simple title to a strip or tract of land, including the tract in controversy, as shown by a deed duly filed for record January 20, 1891. That between January 13, 1891, and November 25, 1898, said company had not sold, assigned, transferred or set over to any one any of its right, title or interest in said tract. That November 25, 1898, Henry Budge, John Kennedy, Tod and Edward C. Henderson, under foreclosure proceedings, by a deed from a Special Master, filed March 1, 1899, acquired all of the property of said U. P., D. & G. Ry. Co., situated, lying and being in said county, including said strip or tract of land. That December 29, 1898, said Budge, Kennedy, Tod and E. C. Henderson, by deed filed March 1, 1899, conveyed to plaintiff all of the property acquired by them under said Special Master’s deed. That plaintiff has not sold, assigned, transferred or set over to defendants, or to any one, said strip or tract of land or any part thereof. The claim of defendants is that they have acquired title to the tract in dispute by prescription. There is practically no controversy between the parties as to the facts. It appears that in the spring of 1891 a building used as a hotel was erected on the tract in dispute, or at least partly on said land, by one McLaughlin. That he sold the building to one Eisher, and that Fisher in the fall of 1894 sold the building to one Howe. Between the fall of 1904 and 1906, Howe sold the building to one Hughes, who held the property for about six months and then sold back to Howe. In February, 1907, Howe sold the building to the defendants. It is [406] not disputed that defendants and their grantors were openly, notoriously, exclusively and continuously in possession of the tract in dispute from the spring of 1891 up to the time of the commencement of this action, November 25, 1913. The question here is, was such possession adverse to plaintiff's title so as to ripen into a title by prescription? To have that effect the possession must not only be open, notorious, exclusive and continuous for the full period of the statute, which in this state is ten years, but such possession must also be taken and held either under color of title or claim of right. (Bryant v. Cadle, Admr., 18 Wyo. 64-86, 104 Pac. 23, 106 Pac. 687.) In the case here it is not claimed that defendants or their grantors had color of title. Plowe was called and testified as a witness for defendants and stated that he bought the hotel in the fall of 1894, and was then asked and answered as follows: Q. Did you know at that time that the building was on the railroad land ? A. Yes, sir. Q. Fisher told you that, did he ? A. Pie did. He took me to the house and showed me the corner of the street. Q. Then you were aware at the time this building was on the property of the railroad? A. Yes. Q. Knowing that, were you determined to hold the land? A. Well, I wasn’t -going to move off unless I was forced to. He further testified: Q. Now, at the time you sold this to Hughes, did you tell him any facts concerning the title to this land? A. I told him how it was situated — part of it on the street, part of it on railroad land. Q. You informed Mr. Hughes, then, clearly of the fact that part of the building was on the land to which the railroad had the record title? A. I did. [407] Q. Did you give him any written conveyance of any part of that? A. Gave him a bill of sale to the building. He also testified that when he bought it back H,ughes gave him the same kind of bill of sale; and when he sold to defendants he gave them a bill of sale, which was introduced in evidence and conveyed “the hotel building and additions thereto and sheds situate at Orin Jc., Wyoming, occupied by grantor as a hotel.” That he told them the railroad had the record and title to this land. On cross-examination he testified that he had not returned the land for assessment and had paid no taxes on the land. He was asked: Q. So you thought you had a right to stay on that land and get title to it without paying a dollar for it, without paying taxes? A. Yes, sir, for a certain number of years. Q. It never occurred to you to tell the railroad company or members of the railroad company that that was your intention, did it ? A. No. Q. In other words, you proposed to keep silent until the statute of limitations was run? A. No, sir, I talked to them, told them the house was on their property. Again: Q. What right did you claim in 1894? Ten years had not elapsed then. A. I didn’t have no right, hut didn’t intend to move unless they forced me off. One'reason was I couldn’t afford to move it. Q. You knew at that time it was railroad property, you have so testified, haven’t you? A. Yes. Again: Q. You said you didn’t intend to leave in 1894 — intended to hold that property in 1894? A. Well, as I said, unless I was forced off. Mr. Bolln, one of the defendants, testified that at the time he and Southwick bought the hotel in February, 1907, Howe told him of the situation; that he knew long before that that the record title to the land was in the railroad company. Never paid any taxes on the land. Thought Howe had title under adverse possession. From Howe’s own testimony it clearly appears that neither he nor Fisher took or held possession under any claim of right, but on the contrary they knew the railroad company owned the land and did not claim that either of them had any right to [408] possession as against the company. Howe admits that he told the officers of the company that the building was on its land, and in all of the transfers it was the building only which was sold. They seem to have been laboring under the mistaken belief that without any claim of right to do so by going upon land they knew was owned by another and being suffered to remain in possession for ten years they would acquire title by prescription. That they could not do so is well settled. In Jasperson v. Scharnikow, 150 Fed. 571-572 (Ninth Cir. Ct. of App.), 80 C. C. A. 374, 15 L. R. A. (N. S.) 1208, it is said: “A man must have bona fide claim, or believe in his own mind that he has got a right as owner, when he goes upon the land that does not belong to him, in order to acquire title by occupation and possession. The defendant's evidence fails to show any claim of right in Bryant when he went on the land. There is not a particle of testimony that squints in the direction that he supposed that he had any right, or that he went there for any other purpose than to acquire right, if he could do so by holding long enough without molestation.” The court in the opinion cites and emotes from Balch v. Smith, 4 Wash. 497, 30 Pac. 648; Blake v. Shriver, 27 Wash. 593, 68 Pac. 330; Yester Estate v. Holmes, 39 Wash. 34, 80 Pac. 851; and 11 Pet. (U. S.) 51, 9 L. Ed. 624. To the same effect see Ryan v. City of Lincoln, 85 Neb. 539, 123 N. W. 1021; McDaniel v. Sloss-Sheffield Steel and Iron Co., 152 Ala. 414, 44 So. 705, 126 Am. St. 48. If it be conceded that the possession of the plaintiffs in error was under a claim of right, they did not have possession for sufficient time to acquire title by prescription: and it clearly appearing that Howe’s possession was not under either color of title or claim of right, the judgment of the district court must be affirmed. Other points urged by counsel for defendant in error have been discussed in the briefs and in oral argument; but as the point already considered disposes of the case, they need not be and have not been considered. Affirmed. Potter, C. J., and Scott, J., concur.