Looney v. Sears

BENNETT, J. There is no question but what the plaintiffs and their ancestor, William Looney, have been in possession of the land from the year 1900 up to the beginning of this suit. Neither can there be any serious question but what that possession' was open, notorious and exclusive. The undisputed evidence shows that William Looney ha(l the land inclosed in the year 1900 (partly by his own fence, partly by the fence around his homestead — 694 — adjoining and partly by connecting with the fences of other neighbors). In 1901 he built a house upon it, two stories high and 16x24 feet in diameter, and after-wards it was enlarged by one of his tenants. He also built a bam on the place. At first he used the land for grazing purposes, but some time prior to 1908, he commenced to cultivate about 15 acres, and in that year one of his tenants, by the name of Rickard, broke up an additional 40 acres, which has since been in cultivation. Looney rented the land out at different times to different parties — once to a man by the name of Simon for two or three years, and again to Rickard, who farmed it for six years — from 1909 to 1914. At the time of his death the improvements Mr. Looney had on the place in dispute were valued by the witnesses at about $1,000 or $1,200. The only question, therefore, is whether or not this possession of Looney was adverse to the rights of the defendant and wider claim of right. As Looney himself is dead, the evidence is necessarily largely inferential and circumstantial. On the one hand, there is his long, continual possession and his continuous acts of ownership over the property. He fenced it, improved it, built a house and bam thereon and rented it to at least two different parties, and the further fact that he did not pay any rent or in anywise recognize any superior right of the defendant. In addition to this, there is the testimony of Robert Looney, son of William Looney, and several neighbors living in the vicinity, who testified that William Looney always claimed to own the land, from the year 1900 down to the.time of his death. Against this, on the other hand, is offered the undisputed fact that Looney did not pay the taxes; that the — 695 — land was constantly assessed to Sears, and that Looney in four different years made sworn returns of his property to the assessor and omitted to list or mention this tract. In addition to this the defendant offered the testimony of one Portwood, who was county clerk between 1901 and 1905, and who testified in relation to the matter as follows: “A. "Well, about all I remember was that he had furnished Mr. Bean the money to buy the land from the R. R. Company, expecting to get a deed to it when Mr. Bean got the title, and that he never got it. That is, Bean had never given him a deed. “Q. "What further did he say, if anything, about claiming the land, or his interest in it? “A. Well, about all I remember was that at one time he talked to me about some one had advised him if he would pay the taxes on the land, it would give him some right to hold it in some way; he had that impression, and he asked me about it. He thought if he paid the taxes before Mr. Sears did, it might help his case. We had some conversation along that line; I don’t remember exactly what it was. “Q. Did he say whether he claimed to own the land? “A. I never remember hearing him say he owned it, but he had possession of it, farmed it. He didn’t talk to me as though he owned it. I understood it was to be assessed to Mr. Sears. “Q. How long ago was that, if you remember? “A. I don’t remember. But it must have been between 1901 and 1905, probably, different times during that time.” And again on eross-examination: “Q. Did he, at the time he asked you about the payment of taxes, did his idea seem to be he was going to retain possession, he was going to hold possession, and he was going to try to get a better hold? “A. Yes; I presume that is what the idea was. — 696 — “Q. He was trying to hold the land, trying to get a better hold? “A. I don’t know as to that. He simply asked me if I thought if he paid the taxes, he would have a better show to retain the land. “Q. He was in possession of the land? “A. Yes.” Defendant also offers his own testimony as to a conversation he had with William Looney in 1904, at a time when he came up to redeem the land from a tax sale. He says!of this conversation: r‘He told me he ought to have that land; that he had an agreement with Mr. Bean, and that he ought to have that land. He says, ‘He has acted the scoundrel with me.’ He used very strong language. He says, ‘If I have to leave that land I will hunt up Bill Bean and kill him; he has betrayed me.’ I said, ‘Mr. Looney, you would hardly do that, after second thought.’ ” There is considerable testimony and much discussion in the briefs as to the nature of the contract between Bean and William Looney regarding the land. It is evident from the record that there was some kind of a deal between them, in relation to this land, prior to the time Bean deeded it to Sears in 1901; but as both Bean and William Looney are dead, the evidence remains very nebulous and unsatisfactory as to what the nature of that agreement really was. As we view it, however, that is wholly immaterial, for whatever that agreement was Mr. Bean repudiated it, claiming that Looney had not complied with the contract upon his part and made it impossible for him to transfer the land to Looney or to comply with any agreement in relation thereto, which had theretofore existed by deeding the land absolutely to Sears. After Bean had thus repudiated the contract and transferred the land to another party, claiming that he was no — 697 — longer under any obligation to convey to Looney, it could hardly be said that Looney continued to hold under the contract. We think Looney’s continuous possession for so long a time; his assertion of ownership and right to the land; the placing of a valuable house and barn and fencing on the land; the renting it, and taking the rents and profits to himself, were such unequivocal acts of ownership, as to overcome the inference which might otherwise be drawn from his failure to pay the taxes, or to return the property upon his tax list. It is true that his failure to pay the taxes on the land • and his failure to return the same on his tax lists was persuasive evidence against his claim of right, and if his acts of ownership were otherwise equivocal or doubtful, his failure to pay the taxes might turn the scales against him. But while the failure to pay the 'taxes, or to return the property for taxation, is competent evidence and of considerable weight, it is by no means conclusive. In 2 C. J. 203, it is said. “Payment of taxes is not an element of adverse possession, unless made so by statutory requirement, and the fact that the owner of land held adversely by another continues to pay the taxes assessed on the land will not preclude the latter from acquiring title thereto by lapse of time. ” In 2 C. J. 270, it is said: . “Adverse possession of land may be shown by proof of the acts of the claimant as well as by his oral declarations. Exercise of the usual acts of ownership over the land in dispute is evidence to show that the possession was hostile. The character of the possession cannot always be determined from the declarations of the person in possession because he may not make any, nor are his declarations always conclusive against one — 698 — claiming under Mm. Thus it is permissible to show a conveyance of the premises by the claimant, or an offer to convey them, or a mortgage, or a lease, or a devise thereof, by him, or that he prevented cattle belonging to others from running at large on the land, or built a residence thereon.” Nearly all of these distinguishing acts of ownership occurred in this case, and in addition thereto, the overwhelming testimony is, that Looney frequently, in connection with Ms possession, asserted that he owned and claimed the land. In Smith v. Badura, 70 Or. 58, 61 (139 Pac. 107, 108), it is said: -“If such person uses the property as his own, that is one manner of declaring to the world, or the true owner, that he is asserting a title in hostility to the true title, and thenceforth the owner must beware. Such entry and use raises a presumption of the claim ■of right or title. ” Again in Dunnigan v. Wood, 58 Or. 119, 124 (112 Pac. 531, 533), it is announced : “Actual, open, notorious, distinct, and continuous possession of real property, under a claim of right, and not inconsistent with the other acts of the party or circumstances in the case, raise a presumption that the possession is hostile.” The statements of Looney to Portwood and to the defendant, do not seem to show that Looney was not claiming a right to the land. The statements to Port-wood import, on the contrary, that he was claiming it, and seeking for means whereby he could make Ms right more effective. In the talk with Sears, he says: “If I have to leave that land I will hunt up Bill Bean and kill him.” We think tMs language, in connection with the fact that he did not give up the land but continued in pos — 699 — session, was an assertion of his claim of right. We do not say, “if I have to leave” a thing unless we are claiming that thing. Of course, Looney knew all the time after Bean refused to make him a deed, that his title to the property was defective, and that he might have to give it up, hut he was sticking in possession and by his actions sturdily asserting his claim, just the same. 1. It is not necessary to make possession “adverse” that a party shall have a perfect title, or that he shall even think he has a perfect title. On the contrary, he may know that his title is weak and defective and yet be holding adversely. In 2 C. J. 201, it is said: _ “Mere knowledge on the part of claimant that the title was defective or was not a perfect title will not impeach the good faith of, his purchase. Such knowledge is not in itself inconsistent with a bona fide claim of right.” In Bessley v. Powder River Gold Dredging Co., 95 Or. — (185 Pac. 753), it is said by Judge Bean, speaking for the court in banc-. “The terms ‘claim of right,’ ‘claim of title’ and ‘claim of ownership,’ when used in the books to express adverse intent mean nothing more than the intention of the disseisor to appropriate and use the land as his own to the exclusion of all others, irrespective of any semblance or shadow of actual title or right.” 2. Here there was every element of adverse possession and that possession was continued for at least 17 years. For at least 14 years defendant Sears knew that Looney was in possession of the property, and ought to have known that he was exercising acts of ownership over the same. — 700 — In Bessler v. Powder River Gold Dredging Co., 95 Or. — (185 Pac. 753), it is said: “The Sumpter Lumber Co. knew, or should have known, of the possession and claim of plaintiff and his predecessors. An owner of premises is bound to take notice of the nature aud extent of possession by claimant. The party holding the superior title is not in the condition of an ordinary and casual observer, but must diligently look to his own interests, know the boundaries of his own land, and ascertain the extent, meaning and locality of any settlement made within them without his authority. ” In this case the defendant having knowledge of Looney’s claim and of his possession, slept upon his rights for a period of more than fourteen years. He is now in’no position to assert them. ' The decree of the court below is affirmed. Affirmed. .