Smeberg v. Cunningham

Grant, J. Plaintiff is the owner of the record title to the land- in controversy. Defendant claims title by adverse possession. The land is described in the declaration as— « That portion of Palms street lying north of the center line of said street, and south of the north line of said street, and abutting on lots ‘15 and 16 of block 1 of White’s addition to the city of Marquette.’’ From 1871 to 1880 the Champion Iron Company was owner of the governmental subdivision which included this — 382 — land. The land was mainly unoccupied, but at some time a small house had been built upon it, but when or by whom does not appear. The owners of the land do not appear to have paid much attention to it for many years, though Mr. Peter White, of Marquette, had general charge of it. A fence had been built inclosing some of the land around the house. The land was platted in 1888. The house is in Palms street, and the land which defendant claims is directly in front of plaintiffs lots, on which he erected a house. One of his lots fronts on Palms street, and the other is on the corner of Palms and Champion streets. While he was building his house and improving his lots, he used the street covering the land in controversy, and built with reference to it. During this time defendant saw what he was doing, but made no objection or claim of ownership to him until after he had lived upon his lots six months, when she built a fence along the front of his lots. Poor people appear to have moved into this house at various times, and to have occupied it without paying rent, or claiming any right either to the house or to the land. One Hudson, a witness for the defendant, testified that he occupied the premises with his mother in 1873 and part of 1874; that his mother was poor, the house was empty, and he knew of no authority given them to occupy it; and that when his mother moved out the defendant moved in. Defendant occupied it until some time in 1888 or 1889, when she removed to another part of the city, but her daughter testifies that she left some goods in the house, and that she had boarders who slept there. The character of the possession will appear from defendant’s own testimony: “ Q. State how you came to go and live there. “A. Well, a man by the name of Mr. Neif lived in the house, and my man worked there. We lived by the furnace, and he came into the house, and said that it was a good place for a poor family, and that it would be near his — 383 — work, and he said that he lived in there quite a good many years, and he said that he never paid any rent, nor no rent was ever asked of him, he says; and he said he had poor health, and couldn’t do any work. He worked •on the docks. 'That I ain’t able to do,’ he says; 'I am going out west to get a bit of land.’ Well, then I saw my husband, and asked him whether I would go. I says, 'I would like to look at it;’ and he said it was pretty good, and 'you will never have to pay any rent.’ So I went and moved in there, to see how we would get along there, and I told Mrs. Swineford I would live there, and make it my home, and the rest of my family, and keep it; when nobody was looking for rent, I would keep it.” On cross-examination she testified that, some five or six years after she went into the house, she had a conversation with a Mr. Ely, in which he told her that it was his brother and Mr. Wells who owned the house; and that •"the reason she kept it was because they were dead.” Defendant’s daughter was asked what claim she heard her mother make, and she replied: " Quite a few times, when I was going to visit her, she always said she was going to live there, -because my father, he wanted her to go out west, and she wouldn’t go; it was a wild place, and she had a place of her own. " Q. Did she give any reason for her claim? “A. She thought nobody had ever bothered her, and never had come to look for rent and bother with her place, and she thought she might as well stay there.” On cross-examination this witness said that if her mother had had to pay rent she would not have lived there. Meanwhile, the owners of the land paid the taxes, and the property was- sold and mortgaged, and the owners of the record title exercised the usual acts of ownership over land situated as this was. Defendant was poor, and during a large portion of the time of her occupancy of this house was the recipient of aid from the poor fund of the county. Mr. Maynard, for many years one of the superintendents of the poor, testified that in 1885 she asked him to pay the rent of the house, — 384 — saying she was not able to do it. Peter White testified that in 1880, after the land was sold by the Champion Iron Company, he had the entire charge of the property, paid the taxes, exercised other acts of ownership over it, and in that year asked the defendant to pay rent, and she replied that she was too poor to pay it. These statements were denied by her, and, so far as they are concerned, it was, of course, a question for the jury. The following special questions were submitted to the jury at the request of defendant’s counsel, and respectively answered by the jury, as follows: , “ Q. Did the defendant occupy the premises in dispute, either by herself or her tenants and boarders, or both, for a period of 15 years, continuously, prior to the commencement of this suit, without recognizing any one as her landlord? “ A. Yes. “ Q. Did the defendant ever pay rent to any one for the. premises in dispute? “A. No.” 1. The court, as requested, should have instructed, the-jury that the defendant had failed to establish title by adverse possession. She did not enter under any claim or color of right, nor in the belief that she had any right. Her entry and possession were the same as those of former occupants, who claimed no right to the property. She did not intend to retain possession, according to her own evidence, any longer than she could do so without the payment of rent. This was a recognition of title in some one-else, and was conclusive evidence that her entry and posses-, sion were subject to that title. The answers to the special questions do hot, of themselves, establish a case of adverse-possession necessary to establish title. Mere possession is not sufficient. It must not only be actual, continuous, visible, and notorious, but it must be hostile to the title — 385 — of the real owner. An entry with the intent to remain in possession until the real owner claims it, or demands rent, is not hostile. These questions clearly gave the jury to understand that such possession was sufficient to establish title in defendant. Their verdict can be explained upon no other theory. Her actual residence upon the property was not 15 years. Including the time during which, according to her daughter's testimony, she had some goods in the house, her possession was barely 15 years. The statute of limitations, in such cases, begins to run only from some act of possession so open, notorious, and hostile that it constitutes, in law, a notice to the real owner. The entry, under the circumstances of this case, was not such an act. No subsequent act or assertion upon her part, even if sufficient, is shown to have occurred 15 years prior to the commencement of the suit. It was said by Mr. Justice Campbell in Campau v. Lafferty, 43 Mich. 431, “that a holding cannot be adverse if the holder does not believe in his title.” It was also said in that case that “a possession may be maintained long enough by an undisturbed and defiant trespasser to bar an ejectment.” The defendant in this case did not believe in her title, nor was she a defiant trespasser. %. It is contended that the plaintiff has no such title in this land as would sustain an action of ejectment. The-plaintiff is the owner of the fee of the land to the center of the street, and has the right to its use, subject to the public easement. He may set out shade trees, construct a sidewalk, and exercise other acts of ownership and possession which do not interfere with the public use. He has a valid and subsisting interest, under How. Stat. § 7790. The-rights of the public are not here in issue, and the question whether the municipality could maintain an action of ejectment is not involved. Plaintiff was ousted of his. — 386 — possession and nse by the act of the defendant. TJndei such circumstances, ejectment is the proper remedy. Judgment reversed, and new trial ordered. The other Justices concurred.