Kingston v. Guck

Brooke, J. (after stating the facts). It is the claim of the complainant that all the a'cts relied upon by defendants, taken together, constituted nothing but an intermittent trespass upon the land, and cannot be held to amount to an adverse possession, as against the owner of the paper title. It is further the contention of the complainant that, because Senter acquired his apparent right to enter by virtue of two separate tax deeds from the State, one covering the N. E. ¿ and the other the S. E. \ of section 11, therefore it was incumbent upon the present owner to show continuous, separate, and distinct acts of dominion and locate them upon each quarter separately. We are unable to agree with this view. Where the same grantor conveys to the same grantee two separate de [270] scriptions of land, contiguous to each other, by separate instruments, which are thereafter used, dealt with, and deeded by the grantee and his successors in title as one description, we are of the opinion that acts of dominion over any portion of the land covered by the entire description are referable to the whole, in any event, after the two descriptions are merged in one. In 1885 Senter by his deed to Nester conveyed as to the pine timber the entire east half of the section, and in 1886 he sold it as one parcel to Brockway. There is no doubt that under the license thus granted Nester took off all the pine timber from both quarter sections. Brockway deeded to Bruneau as one parcel in 1895. It is apparent from the record that the acts of dominion of Brockway and Bruneau in taking out ties and the cutting of cordwood were committed indiscriminately upon all parts of the east half. The principle of law controlling this case is' clearly and correctly stated by the supreme court of Minnesota (Murphy v. Doyle, 37 Minn. 113), speaking through Mitchell, J., as follows: “ The general doctrine of the courts in the United States is that, where the occupant or those under whom he claims enter into possession under claim of title, founding such claim upon some written instrument as being a conveyance of the premises in question, and there has been continued occupation of some part of the land included in such conveyance, he or they will be deemed to have been in the adverse possession of the whole of such premises if not in the adverse possession of anyone else.” See, also, Morris v. McClary, 43 Minn. 348, where the court says: “ If one has a deed or color of title to one entire tract of land, as to one whole lot or farm, which is uninclosed, and he is in actual possession of a part, the remainder not being actually occupied by any one, his deed or color of title will, ordinarily, extend his possession to the entire tract for the purpose of showing adverse possession.” See, also, 1 Cyc. p. 1128, and cases there cited. Much stress is laid upon the claim of complainant that [271] mere acts of trespass cannot be held to sustain a title by adverse possession. This is unquestionably true. That, however, is not this case. From the time of the entry upon the land by Senter in 1883 to the filing of the bill in this case, operations of very considerable magnitude were carried on upon the land, openly and notoriously, and under a color of right and assertion of ownership, by Senter, Brockway, and Bruneau. During that period several thousand cords of wood have been cut and sold from the property, and upwards of 1,000,000 feet of pine taken therefrom and disposed of, to say nothing of the clearing and seeding of several acres and the annual removal of hay. The record is silent as to the final disposition of the pine in question, but the cordwood for upwards of 20 years has been taken in large quantities by Senter and his successors in title, and disposed of entirely in thegimmediate vicinity of the property, without objection from the holder of the paper title, who, from the year 1877 to the time of the filing of the bill, seemed content to allow Senter and his grantees to continue in possession of its property under the tax deeds, which are conceded to have been invalid. The title to the entire east half of the section, from 1883 to the time of the filing of the bill of complaint, was, by local reputation, first in Senter, then in Brock-way, and last of all in Bruneau. The case at bar is clearly distinguishable from Lasley v. Kniskern, 152 Mich. 244. In that case for a period of 10 years — from 1889 to 1899 — the defendant, claiming title by adverse possession, did nothing whatever upon the land. This court said: “ It is not enough that a party sets up a hostile claim, and that that claim is known to the original owner. He who 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.” Considering the character of the land, its general unfitness for cultivation, and the fact that Senter, Brock272 way, and Bruneau, though none of them lived upon it, made such use of it as was consistent with its character and with their successive ownerships of it, we find no difficulty in agreeing with the conclusions of the learned circuit judge. Decree affirmed. Grant, O. J., and Blair, Montgomery and Ostrander, JJ., concurred.