Lasley v. Kniskern

Grant,.C. J. (after stating the facts). The sole question for our consideration is, Do the facts found by the court below justify its conclusion that the defendant had acquired title by adverse possession ? The notoriety as to claim of title and possession is for the purpose of showing that the original owner had notice of the claim and possession and of its hostile character, and will therefore be presumed to have acquiesced in the claim of the possessor. Where the original owner has actual knowledge of the adverse title and of the hostile possession thereunder, notoriety becomes immaterial, for actual knowledge takes its place. Clark v. Gilbert, 39 Conn. 94; Dausch v. Crane, 109 Mo. 323, 337. In Key v. Jennings, 66 Mo. 367, the court say: “In the case before us nothing is left for presumption, as the evidence shows actual knowledge on the part of the real owner.” The claim of a tax title is necessarily hostile to that of the original owner. Sparrow v. Hovey, 44 Mich. 63. But there must be some actual possession visible to the original owner. After Mr.,Calhoun moved away .from the neighborhood in 1889, Mr. Fuller did nothing to indicate any actual possession. Neither the original owner nor a stranger in passing over the land could see any indications of possession. There was not even a sign against trespassing as was the case in Whitaker v. Erie Shooting Club, 102 Mich. 454. It is not enough that a party sets up a hostile claim and that that claim is known to the original owner. He who [248] seeks to obtain title by adverse possession must not only have a hostile claim, but he must be able to point to a possession under it which is hostile to the original owner. We are therefore constrained to hold that the learned circuit judge was in error. The judgment is reversed, and judgment entered for plaintiff and case remanded for further proceedings under the statute. Montgomery, Ostrander, Hooker, and McAlvay, JJ., concurred.