Clemens v. Runckel

Bates, Judge, delivered the opinion of the court. This was an action of ejectment. The plaintiff showed a clear paper title. The defendant relied upon length of pos [44] session under the statute of limitations. The only question presented is upon the character of that possession — whether it was adverse to the plaintiff. There was judgment for the defendant. This suit was brought February 25, 1859. In 1842, one Kemp took possession of the land, which before then was unoccupied, and built a house upon it, and fenced it and lived upon it until 1848, when he rented it for a year to one Bold, who occupied it as his tenant until the 12th of February, 1849, when he sold his right to one Baker, who immediately took possession, and retained it for three years, when he sold to the defendant, who immediately took possession, and continued to keep it down to the time when the suit was brought. The possession of the defendant was actual, open, continued, uninterrupted, visible, notorious, distinct, and definite The only question is, was it hostile or adverse to the plaintiff? Kemp entered into possession believing the land to be Congress land; that is, the property of the United States; and expecting, on account of his possession, to have a right of preemption whenever the land should be brought into market. Down to the time when he sold his claim to Baker, he still expected to enter the land, and told Baker that he (Baker) could get the land when it came into market. No evidence was given to show what right the defendant thought he acquired by his purchase from Baker. The defendant, and those under whom he claims, did not enter or hold under the plaintiff. They did not recognize his title. They had no privity with him. They do not appear even to have known of the existence of his title. They recognized a title in another person, (the United States,) who was supposed to be the proprietor, and as to the United States their possession was not hostile; but they did expect to acquire the title of the United States, believing themselves to have a right of preemption to the exclusion of all other persons, and a present right to the use and possession of the land. The defendant has the actual possession, within the mean [45] ing of the statute of limitations, with a claim, not of absolute title it is true, but of a right to acquire the absolute title, which right was adverse to all other persons. Kemp, by his entry, was a trespasser upon the plaintiff, and the entry being made without a recognition of plaintiff’s title, and solely for the use and benefit of Kemp, and with the intention thereby to acquire a right of preemption of the fee, woi'ked a disseizin of the plaintiff. Upon very similar state of facts, the Supreme Court of Pennsylvania has held such possession adverse.,to the true owner. (Sweeney v. McCulloch, 3 Watts, 345; Jones v. Porter, 3 Penn. 132.) In this case it appeared that the defendant had, within ten years, extended his possession, but for the land so held a verdict was given for the plaintiff. The defence was confined to the land actually possessed for the full period of ten years. No constructive possession was allowed. Judgment affirmed. Judges Bay and Dryden concur.