Schwallback v. Chicago, Milwaueee & St. Paul Railway Co.

Cassoday, J. It appears that the strip of land in question, lying along the southwesterly side of the defendant’s right of way, was used and cultivated by the plaintiff’s several grantors until the fall of 1885. It was then fenced off by the defendant. That was after the plaintiff obtained from his father a warranty deed of the thirty-five and fifty-six hundredths acres, and before he obtained from him his quitclaim deed. The two strips of land mentioned, claimed by the defendant, and being in that forty, together contained a little over three acres. During the eighteen or twenty years that the plaintiff’s father owned the portion of the forty not belonging to the railway company, only thirty-seven acres appear to have been assessed. Upon the facts stated, the plaintiff claims the right to recover on the ground of adverse possession in him and his several grantors. The question presented is whether such facts warrant the court in hplding such adverse possession. The title to the strip of land in question undoubtedly became vested in the railroad company by the deed to it from Witlin and wife, October 3, 1855, subject only to re-entry in case of breach of condition subsequent. Horner v. C., M. & St. P. R. Co. 38 Wis. 165; Cleveland, C., C. & I. R. Co. v. Coburn, 91 Ind. 557; [297] 17 Am. & Eng. R. Cas. 41; Vail v. M. & E. R. Co. 21 N. J. Law, 190. The mere fact that Witlin continued to use and occupy that strip in connection with his other lands, until he conveyed to the Schindlers in 1864, is no evidence that his possession was adverse to the railroad company, his own grantee. On the contrary, such occupancy by him for nine years, in the language of the statute, must “ be deemed to have been under, and in subordination to, the legal title,” which he had so conveyed to the railroad company; for he certainly was estopped by his own deed from claiming that his possession was adverse to his own grantee. Sec. 4210, R. S.; McCormick v. Herndon, 67 Wis. 650. The deed to the railroad company was recorded in 1855. This being so, we must hold that the Schindlers took title with constructive notice of the existence and contents of that deed. For the same reason, we must hold that the father of the plaintiff, and also the plaintiff, took title with like notice. So that the plaintiff, his father, and each of the Schindlers must be conclusively presumed to know that Witlin not only had no title to the strip of land in question when he deeded to the Schindlers, but that he and^ his wife had, for themselves, their heirs and assigns, covenanted and agreed with the railroad company [grantee] and its assigns, that they would, at their own costs and charges,» build and maintain good and sufficient fences on both sides of said strip of land therein conveyed, and also that said railroad company and its assigns should remain in the quiet and peaceable possession of said strip of land. In several of the states it has been held that a covenant to erect and maintain a partition fence, where there is a privity of estate existing between the covenantor and cove-nantee, or is created at the time of making the covenant, runs with the land and is binding upon a subsequent grantee. Bronson v. Coffin, 108 Mass. 175; 11 Am. Rep. 335; 118 Mass. 156; Hazlett v. Sinclair, 76 Ind. 488; 40 Am. [298] Rep. 254; Easter v. L. M. R. Co. 14 Ohio St. 48; St. L., J. & C. R. Co. v. Mitchell, 41 Ill. 165; Duffy v. N. Y. & H. R. Co. 2 Hilt. 496; Blain v. Taylor, 19 Abb. Pr. 228; Kellogg v. Robinson, 6 Vt. 276; Morse v. Garner, 47 Am. Dec. 575, and note. Those cases are distinguishable from Cole v. Hughes, 54 N. Y. 444, where no privity of estate existed or was so created, and perhaps from Hartung v. Witte, 59 Wis. 285, where the agreement, to maintain the fence, was by the grantee in the deed who conveyed to the defendant. Eor a discussion of such distinction, see Norcross v. James, 140 Mass. 188; 25 Am. Law Reg. 64; 3 Washb. Real Prop. 493, 494 (*659). But however this may be, there can be no doubt but what the covenant, that the railroad company and its assigns should remain in the quiet and peaceable possession of the strip of land in question, did run with the land, and hence was binding upon the subsequent grantees of Witlin, including the plaintiff and his father. Since such subsequent grantees each entered into possession subject to said deed to the railroad company containing such covenants, such possession must, upon the principle already stated, and under sec. 4210, R. S., “ be deemed to have been under and in subordination to the legal title,” in the railroad company or its assigns, “ unless it appears that such premises have been held and possessed adversely to such legal title for ten years,” under sec. 4211, R. S., or twenty years, under sec. 4213, R. S., before the commencement of this action. Each of such subsequent grantees must be presumed to have entered under their respective deeds, with knowledge that Witlin had previously parted with the title by deed containing at least one covenant running with the land, and binding upon him as such grantee, to the effect that he would “ forever warrant and defend ” the “ premises in the quiet and peaceable possession ” of the railroad company and its assigns. With such presumption resting upon each of said grantees, can we affirm from his mere occu [299] pancy or possession, tbe same as Witlin bad enjoyed it for nine years, that bis entry was “under claim of title” to said strip, within tbe meaning of tbe statutes cited, merely because it was described in his deed ? It must be remembered that mere occupancy or possession for twenty years is not sufficient to set tbe statutes of limitation running. To do that, it must be held adversely. Hacker v. Horlemus, ante, p. 280; Sartain v. Hamilton, 62 Am. Dec. 524. It has been held that whenever both parties claim title under the same person, neither of them can deny his right, and as between them the elder is the better title and must prevail; and hence, that the estoppel of the grantor to deny his grantee’s title arising from his deed, extends to all persons who claim from or under the grantor by title acquired subsequent to the grant, whether by deed or otherwise. Gilliam v. Bird, 8 Ired. L. 280; 49 Am. Dec. 379, and cases cited in tire note. This must, at least, be so presumptively. Any of such subsequent grantees, desiring to destroy such presumption and take and hold that strip of land by adverse possession to which he had no title by virtue of his deed, though described in it, was bound first to disseize the rightful owner before he could set the statute running in his favor. As to what constitutes such disseizin is well stated by Parsons, C. J., in the leading case of Kennebeck Purchase v. Springer, 4 Mass. 416; 3 Am. Dec. 227, where he said: “When a man is once seized of land, his seizin is presumed to continue until a disseizin is proved. . . . When a man not claiming any right or title to the land shall enter on it he acquires no seizin but by the ouster of him who was seized, and he is himself a disseizor. To constitute an ouster of him who was seized, the disseizor must have the actual, exclusive occupation of the land, claiming to hold it against him who was seized, or he must actually turn him out of possession. ... To constitute a dis-seizin of the owner of uncultivated lands by the entry and [300] occupation of a party not claiming title to the land, the occupation must be of that nature and notoriety, that the owner may be presumed to know that there is a possession of the land adverse to his title; otherwise a man may be disseized without his knowledge, and the statute of limitations majr run against him, while he has no ground to believe that his seizin has been interrupted.” That opinion has been regarded as high authority on the doctrine of adverse possession, not ■ only by the courts of that state, but by others. See note to last report cited, and 3 Washb. Real Prop. 160 (*494). “ The doctrine of adverse possession is to be taken strictly. Such a possession is not to be made out by inference, but b}r clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner.” Huntington v. Whaley, 29 Conn. 391. Here the testimony fails to disclose anything more than a mere occupancy or possession by any of such subsequent grantees. It was nothing more than the occupancy of Witlin before any of such subsequent conveyances. That was subordinate to the title of the real owner. We must hold that there is an absence in the record of any evidence of disseizin. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.