Hyde v. Holland

Strahan, J. A preliminary question was presented by the appellants on the argument here, and that was that the plaintiff had no such possession as would enable him to maintain this suit under § 504, Hill’s Code. The only possession which the plaintiff shows is constructive possession, which follows the legal title, and that was held to be sufficient by this court in Thompson v. Woolf, 8 Or. 455. 2. The appellants next contend that at the time they made their deeds to the plaintiff their title to the lands was inchoate, and was not a vendible title; that inasmuch as the patent was issued to Patrick Holland after the date of such deeds, his title thus acquired remained in him and never passed to his grantee. Whether Holland’s inchoate title passed to his grantee under his warranty deeds, or whether he is estopped by his deeds from claiming it, the result is the same. In neither event would he have any interest in the premises. Lewis v. Witherell, 31 N. W. Rep. 356; Myers v. Croft, 13 Wallace, 291; Orr v. Stewart, 67 Cal.; 275 Callahan v. Davis, 2 S. W. Rep. 216; Boggan v. Ried, 20 Pac. Rep. 425; Lang v. Morey, 42 N. W. Rep. 88; Smith v. Ewing, 23 Fed. Rep. 741; Richards v. Snyder, 11 Or. 501; Wilson v. McEwen, 7 Or. 87; 2 Estoppel, and Res Judicata, §§ 671, 672. 3. The only remaining question arises out of the answer of the defendant Margaret Holland setting up the statute of limitations as a defense to this suit. I have looked into this evidence and do not think enough is shown to establish the adverse possession relied upon. An occasional entry upon another's land, and the cutting and carrying away of timber growing thereon, are not enough to constitute adverse possession. Such acts alone do not [334] constitute possession. They have no continuity, and could only be regarded as several trespasses upon another’s land. But while not necessary to a decision of this case, it may be queried whether there is not another question presented by this record which is equally decisive against the defense set up by Margaret Holland. This suit was commenced on the second of August, 1887. Patrick Holland’s patent was issued August 20, 1884, and a patent was necessary to divert this title out of the United States in this case. If Margaret Holland’s possession was adverse, when did the statute of limitations begin to run? Gould it commence to run while the legal title still remained in the United States, or only after the issuance of the patent? In Gibson v. Chouteau, 13 Wall. 92, the court said: “With the legal title, when transferred, goes the right to possess and enjoy the land, and it would amount to a denial of the power of disposal in congress if these benefits which should follow on the acquisition of that title could be forfeited because they were not asserted before that title v/as issued.” And, in conclusion, the court said in the same case: ‘ ‘But neither in a separate suit in a federal court, nor in an answer to an action of ejectment in a State court, can the mere occupation of the demanded premises by plaintiffs or defendants for the period prescribed by the statute of limitations of the State be held to constitute a sufficient equity in their favor to control the legal title subsequently conveyed to others by the patent of the United States, without trenching upon the power in the disposition of the public lands. That power cannot be defeated or obstructed by any occupation of the premises, before the issue of the patent, under State legislation, in whatever form or tribunal such occupation be asserted.” And such seems to be the effect of Wilcox v. McConnell, 13 Peters, 498; Irvine v. Marshall, 20 How. 558; Lindsey v. Miller, 6 Peters, 667; and in Buswell on Limitations and Adverse Possession, § 252, it is said: “No length or kind of occupation prior to the [335] issuing of a United States patent will be effectual to create an adverse possession as against the patentee. ” So that in either view of the subject the decree of the court below was right and must be affirmed.