Pepper v. O'Dowd

ByaN, C. J. This case involves tbe construction of secs. 6 and 7, cb. 138, E. S., and especially subdivisions 3 and 4 of sec. 7. These sections were copied from'tbe New York revision of 1829, part 3, cb. 4, secs. 9 and 10, witb some verbal differences of no significance bere, except tbe substitution of ten years in sec. 6- for twenty in tbe New York statute. Here, as well as in New York, these sections clearly limit and define tbe entire rule of constructive adverse possession. All constructive adverse possession under tbe statute must come within some of tbe conditions which tbe statute gives. And, in giving construction to these, any nice consideration of tbe rules of decision outside of tbe statute would, we think, be quite unavailing. The questions before us are new here, and seem to have been tbe subject of but little authoritative discussion in New York. Simpson v. Downing, 23 Wend., 316; People v. Livingston, 8 Barb., 263; Munro v. Merchant, 26 id., 383; 28 N. Y., 9; Dominy v. Miller, 33 Barb., 386. Tbe two sections must be considered together as one entire provision; for they are not only in pari materia, but are clearly dependent on each other. Sec. 6 gives tbe general rule ef adverse possession under paper title; and sec. 7 defines certain particular conditions of such adverse possession. Sydnor v. Palmer, 29 Wis., 253. We cannot regard sec. 6 and subds. 1, 2 and 3 of sec. 7, as giving different rules, as tbe New York court of appeals seems to have thought. Munro v. Merchant, supra. Sec. 8 limits adverse possession, under claim other than upon paper title, to actual possession only. Sec. 6 enacts what was generally recognized as tbe law before tbe statute, that when one enters into and bolds continual possession, under a paper title, of part of tbe premises included in it, be — 544 — shall be deemed, to bold adversely all tbe premises included in it; that is, when one enters under color of title, be is presumed to enter claiming according to tbe extent of bis title (Sydnor v. Palmer, 29 Wis., 226), and where there is no adverse possession, tbe law will construe bis entry to be coextensive with bis title (Ellicott v. Pearl, 10 Pet., 412); “ except that when tbe premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed tbe possession of any other lot of tbe same tract.” This exception materially restricts tbe rule of constructive adverse possession, as held before tbe statute; and unquestionably enters into every condition of adverse possession under these sections, save only in the instance of a known farm, substituted by subd. 4 of sec. 7 for a simgle lot. And so, under these sections, actual adverse possession of part of a single lot or a known farm shall not operate as constructive adverse possession be■yond the limits of such lot or farm. The object of tbe exception is sufficiently intelligible.' Before tbe statute, adverse possession, to bar tbe true title, should be visible and notorious. Hare and Wallace’s notes, 2 Smith’s Lead. Cas., 561; Hawk v. Senseman, 6 S. & R., 21. Being visible and notorious, the true owner was presumed to have notice of it and to acquiesce in it. But although the actual possession of some of the premises claimed might be so visible and notorious as fairly to imply notice and acquiescence, there was danger in extending such possession by construction to all of the premises claimed; for this could not always be visible and notorious, so as to raise a fair presumption of notice and acquiescence. The paper title might be relatively extensive, and the actual possession relatively limited. And it might'often be unsafe to hold actual adverse possession of one or some of several parcels, under one title, as constructive adverse possession of all the parcels; so as to bar the right of the true owner, however insignificant the actual possession might comparatively be. The difficulty lay in connecting the — 545 — actual possession with, tbe extent of tbe paper title. And tbe presumption tbat actual possession of some of tbe premises ■claimed under one title, should operate as visible and notorious adverse possession of tbe whole, really implied another presumption, perhaps seldom true- in fact, tbat tbe extent of tbe paper title was as visible .and notorious as tbe actual possession. Where tbe paper title covered several distinct lots, possession of one lot under it could not always be, perhaps seldom was, fair notice of possession claimed in tbe others. But as possession of part of a single lot may well imply a visible and notorious claim of title and possession to tbe whole of it, tbe danger of injustice from tbe doctrine of constructive adverse possession is greatly lessened, if not wholly removed, by confining it to tbe single lot within which tbe actual possession is taken and maintained. This is our understanding of tbe intent of tbe sections under consideration. See revisers’ notes, 5 Edmunds’ Stats., 430; Simpson v. Downing; Munro v. Merchant. Sec. 6 having determined tbe general rule, tbat actual possession of one lot shall not be deemed constructive possession of any other lot, sec. 7 proceeds to define some conditions of adverse possession under see. 6. And these are distributed into four instances: 1. Cultivation or improvement. 2. Protection by a substantial inclosure. Whether and in what circumstances, under these two subdivisions, cultivation or improvement in tbe one case, or inclosure in tbe other, of part of a single lot could be held constructive adverse possession of tbe whole lot, except under tbe conditions of subd. 4, are questions not before us in this case. 3. Use of. uninclosed land for fuel or fencing, for tbe ordin-. ary use of tbe occupant. Du Pont v. Davis, 35 Wis., 631. This subdivision, as reported by tbe New York revisers, was limited by tbe words, “ for tbe purposes bf a farm of which it forms a part.” Tbe legislature there rejected those words, — 546 — and substituted tbe limitation found in tbe section as adopted by tbe legislature bere, “ for tbe purpose of husbandry or the-ordinary use of tbe occupant.” Tbe language adopted and tbe language rejected alike indicate tbat tbis subdivision is-independent of subd. 4. 26 Barb., 383. These three instances are obviously held by tbe statute as-equivalent to actual possession, independent of any other possession. If such actual possession be of less than a whole lot,, it may, in proper circumstances, probably under subd. 3 and possibly under subds. 1 and 2, operate as constructive adverse possession, of tbe whole lot. But such actual possession certainly can, under tbe limitation of sec. 6, be carried, in no-case, as constructive adverse possession, beyond tbe limits of' tbe same lot. These three subdivisions have defined actual adverse possession, leaving constructive possession arising from it to the-general rule of sec. 6. But tbe fourth subdivision appears to-give a rule of actual and constructive adverse possession for itself. 4. “ Where a known farm or a single lot has been partly improved, tbe portion of such farm or lot tbat may have been left not cleared or not included according to tbe usual course- and custom of tbe adjoining country, shall be deemed to have-been occupied for tbe same length of time as tbe part improved or cultivated.” Tbe word included is found in tbis subdivision, apparently by inadvertence, instead of tbe word inclosed in tbe New Tork statute; and must be construed in tbe same sense, as it-cannot well bear any other bere, and will bear tbat. As applied to a single lot, tbis subdivision may operate to limit the effect of subds. 1 and 2, by making them' dependent-on tbe usual course and custom of tbe adjoining country. For subds. 1 and 2, of themselves, limited only by tbe general rule of sec. 6, would make cultivation or improvement in the-one case, inclosure in tbe other case, of part of a lot, actual — 547 — possession of such part and constructive possession of tbe whole, independent of any course or custom; while subd. 4 gives that effect to such actual possession only when the unimproved or uninclosed part is left so according to the usual course and custom of the adjoining country. There is no difficulty in determining what a single lot of the statute is. It is the smallest legal subdivision of land. Munro v. Merchant, supra. Its extent is certain of itself without recourse to any course or custom. And in regard to it, the provisions of sec. 6 and subds. 1 and 2 of sec. 7 seem to have been complete without subd. 4. The latter subdivision, so far as it relates to a single lot, appears only to confuse the statute, otherwise precise and certain. It is apparent that the principal object in framing that subdivision was a hnown farm; and it is to be regretted that the subdivision was not confined exclusively to it. _ The farm of the statute is not land intended to be cultivated, but a body of land held for cultivation and cultivated in whole or in part. Burrill’s Diet. A farm' may be of any sizé, of any shape, of any boundaries; may include less than one lot, or comprise several lots or parts of lots. And in taking a farm out of the general exception in § 6, and in applying to it in some degree the same rule as to a single lot, the statute substitutes Imown limits according to the course and custom of the country, for the defined limits of a single lot. As already seen, the purpose of the section is to confine constructive adverse possession to such visible and notorious possession as may fairly imply notice and acquiescence; in other words, to render the extent of constructive adverse possession as certain as its nature will permit. Hence the limitation to the defined boundaries of a single lot. Hence, also, the condition of a farm substituted for a single lot, that it shall be hnown. As the possession is limited to one lot, so it is to one farm, with hnown boundaries to compensate the. defined boundaries of a lot. And as it is the object of the — 548 — statute to render adverse possession notorious, so tbe extent of a farm substituted for a single lot, must be known, in tbe sense of being notorious. Being so known, when part of it is left uncleared or unin-closed, according to tbe usual course and custom of tbe adjoining country, adverse possession of tbe part actually occupied may extend, by construction, to tbe part left uncleared or uninclosed according to sucb course and custom. Tbe course or custom intended is presumed to make tbe uncleared or uninclosed land a known part of tbe farm; and the course or custom wbicb operates to extend a notorious adverse possession, must itself be notorious. And thus tbe limited rule of constructive adverse possession wbicb tbe statute continues, can never carry it beyond the defined limits of tbe whole lot or tbe known limits of tbe whole farm, of wbicb part is held in actual possession; making constructive possession, as far as may be, as visible, notorious and distinct as tbe actual possession on wbicb it rests. All adverse possession must be distinct and continued; notoriously and visibly so. Hare & Wallace, ubi supra. And it canbot be enlarged, either as to title or extent, after entry. To constitute adverse possession, entry must be made with defined claim of title and of possession, continued while tbe statute runs; and, after entry, sucb claim cannot be enlarged, unless indeed by acts equivalent to a new entry and new claim of adverse possession. Angelí’s Lim., sec. 384. Entry upon part of a lot, under claim of title to tbe whole, while other part is held adversely, cannot found adverse possession of tbe whole lot, though afterwards the adverse possession of tbe other part be abandoned. And so possession of a known farm cannot be enlarged after entry, to constitute adverse possession founded on sucb entry by enlarging tbe boundaries of tbe farm. Within tbe statute, tbe known extent of tbe farm at tbe time of entry limits adverse possession under tbe entry, as surely as tbe defined extent of a single lot. And, in order' — 549 — to establish adverse possession of a known farm, outside of the actual possession taken, the known extent of the farm at the time of entry must be established. "When established, adverse possession founded on the entry can, under no claim or pretense, be suffered to travel beyond that extent. It is the intent of the statute to make the hounds of a known farm as certain, as far as may be, as the hounds of a single lot; and so to make adverse possession of the one as distinct, visible and notorious, as far as possible, as adverse possession of the other. “ The usual course and custom of the adjoining country ” is obviously a local custom. If there were, in fact, such a custom applicable to this case, it might and should have been proved by parol. 2 Greenl. Ev., § 250. No proof was given on the subject; but it was, perhaps, hardly competent for the court below to assume that there was no settled custom on the subject. If the assumption were correct, it seems that subd. 4 of sec. 7 should have been excluded from the consideration of the jury, because that subdivision is dependent on such a custom. And it was certainly error to instruct the jury that, in the absence of any settled custom, every farmer should be allowed to judge for himself; that is to say, every farmer shoiild be a custom unto himself. It appeared in evidence that what are called the Pepper farm and the Miller farm had been, not remotely, possessed and used in severalty, as several farms, by several owners. Both are embraced in some of the respondent’s title papers. But that goes no more to make them one farm than to make them one lot. To reduce the two into one known farm, within suhd. 4, so as to make the actual adverse possession of the respondent or his grantor of part, constructive adverse possession of the whole, it should have been proved that the two had been joined together in one known farm before the entry on which the respondent claimed, and constituted one known farm at the time of such entry. We-understand the charge of the court below, and we think the jury must have understood — 550 — it, to bold that if tlie Pepper and Miller farms, after entry, with or without intervening land held by the respondent’s grantor under a different title, constituted one known farm, then constructive adverse possession of tbe whole followed the entry of the respondent’s grantor. We need not repeat the reasons why we consider this to be fatal error. And we may be permitted to remark that there is, throughout the charge, an obvious conflict between the certain rule of adverse possession which the statute sanctions, and the loose and indefinite application of the rule sanctioned by the court below; and much that looks very like a reversal of the rule that, under the statute, every presumption is in favor of the true owner. Wilson v. Henry, 35 Wis., 241. How much uninclosed land may be so used for fuel or fencing or both, under subd. 3, as to constitute an actual adverse possession of it, may be a question of some difficulty. Certainly such actual use on one lot cannot carry with it constructive use on another lot, of the same piece of timber. The use is put by the statute as actual possession, subject to the general exception of sec. 6. Land, to come within the subdivision, must be used for the supply of fuel or fencing according to the subdivision, and we are inclined to think, must be held for that use as its sole or principal object, in good faith. The extent of land so used must bear a reasonable proportion to the use; must not be positively greater than is reasonably sufficient for fuel and fencing, in the circumstances of each case. And the use must be distinct, visible, continued and notorious, under claim of title; distinguishable from casual trespass or occasional use. Austin v. Holt, 32 Wis., 478. It must be such as to constitute the person using the land for fuel or fencing, the occupant of it, in the words of the subdivision. This question also seems to have been referred, by the court below, very much to the judgment of the occupant, in the absence of fraud or insincerity. We cannot but say that the quantity, several hundred acres, appearing to be — 551 — «¿aimed bere for tbis use, looks to us unreasonably out of proportion to tbe supply of fuel and fencing, in tbe circumstances proved. So large a tract of forest would not be witbin tbe intendment of tbis provision.” Munro v. Merchant. Wbat is a reasonable quantity, in eaeb case, is not altogether for tbe party as matter of choice, nor altogether for tbe court as matter of law; but is a question for tbe jury, under proper limitation and instruction. • Ve ought not to close tbis discussion without tbe remark, that subds. 3 and 4 of sec. 7 are quite independent of each ■other; and that both cannot support tbe same possession of tbe same premises. We do not say that one may not, under any circumstances, bold possession of a farm under subd. 4, •and of a separate lot for fuel and fencing under subd. 3. On that point we intimate no opinion. But as there is no confusion in tbe statute between tbe two forms of possession, so there can be no confusion of possession in fact under them. And where possession is claimed as of a farm, tbe claim can receive no aid from subd. 3; where it is claimed as used for the supply of fuel or fencing, tbe claim can receive no aid from subd. 4. An ambiguous possession, claimed in part under each subdivision and not supported by either alone, is not witbin tbe statute, and will go for nothing. Other matters were discussed at tbe bar, which we do not deem it necessary to consider. It is apparent from all that has been said, that tbe judgment of tbe court below must be reversed, and tbe cause remanded for a new trial. By the Gowrt. — So ordered.