Douglass v. Ruffin

Opinion by Clogston, C.: This was an action in ejectment, brought by the plaintiff in error to recover possession of two lots in the city of Leavenworth. The findings of fact show that sometime in 1877 or 1878, plaintiff took possession of the lots and leased the same, and that the léssee inclosed the premises with a fence, and occupied them about three years. At this time plaintiff had two deeds issued by the city of Leavenworth for city taxes; under these claims of title he [532] took and held possession of the property. The defendant, in 1883, entered upon the premises and erected a small house, and has retained possession ever since. This right of possession is the only claim the defendant asserts to the property. Without passing upon the questions of what interest plaintiff possessed by virtue of his quitclaim deed from Higinbotham, and also the effect of the quitclaim deed from Higinbotham to Leavenworth county, we yet hold that plaintiff’s possession under a claim and color of title was a sufficient interest and title upon which to maintain an action in ejectment; and this title, being paramount to the title or interest of the defendant, is sufficient to maintain a judgment in favor of the plaintiff for the possession of the premises, unless it is found that at the time the defendant entered into possession the plaintiff had abandoned his possession or right of property. (Gilmore v. Norton, 10 Kas. 491; Duffey v. Rafferty, 15 id. 1; Simpson v. Boring, 16 id. 248; Mooney v. Olsen, 21 id. 697; Hollenback v. Ess, 31 id. 88.) The findings of fact on that point show that plaintiff went into possession in 1877 or 1878, and that the premises were fenced. The fencing of the property was an improvement of a character such as would doubtless remain after the three years’ possession of the lessee. It would be a part of the realty, aud would, in the absence of other showing, become the property of the plaintiff. When it is once shown that property has been improved, and that the character of the improvements is of a lasting nature, such as would survive for a period of years, that improved condition will be presumed to have continued until the contrary is shown. If this be true, then, in the absence of any showing on the part of the defendant that at the time he entered into possession of the property it was abandoned, or that the improvements had been removed, we must hold that at the time the defendant entered upon the property it was in like improved condition as described by the plaintiff in 1877 or 1878. This being true, the defendant had uo right to or interest in the property, and his possession being wrongful, plaintiff is entitled to a iudgment for its possession. [533] It is therefore recommended that the judgment of the court below be reversed. By the Court: It is so ordered. All the Justices concurring.