Ovig v. Morrison

MaRShalu, J. Counsel for appellant claim, in the main, that the judgment should be reversed, because (1) possession in respondent Morrison?s chain of title was not continuous during a twenty-year period creating ownership by adverse possession; that the occupancy was mostly by tenants and there were periods when the house on the premises was vacant; (2) respondent’s possession, to the extent of the premises in dispute, beyond the calls of her paper title, was referable to mistake of boundaries, without intent to claim beyond the line described in her deed. 1. The first point may well be passed over briefly. Obviously, one’s possession of land after adverse entry, by his tenant, is his possession, and if the tenancy is terminated, he still exercising acts of ownership over the premises, though leaving the building thereon vacant for an interval of time now and then, waiting for an opportunity to obtain another tenant, the seisin not being changed by hostile entry by an adverse claimant, the disseisin 6f any other commenced by the first entry is not interrupted. It is an elementary rule that where adverse possession of land has once been fully [247] established, occasional absences or intervals of there being no person residing on the premises, such circumstances not being of a character to evidence abandonment, and there being no actual interruption by re-entry of the person originally dispossessed, do not change the nature of the adverse possession. Ill. S. Co. v. Bilot, 109 Wis. 418, 428, 84 N. W. 855, 85 N. W. 402; Newell, Ejectment, § 49 (p. 737). 2. The idea that, where a person enters into actual possession as owner under a deed, and extends such possession beyond the calls thereof through mistake as to the true line, it is, as a matter of law, restricted to such line as to the character of the possession, — has no place in our statutes on the subject of adverse possession. Early observations out of harmony with that have been many times in recent years shown to be contrary to the written 'law. The extent of adverse possession under color of title, is measured by the true boundaries indicated in the evidence of ownership relied upon, but that does not interfere with actual occupancy beyond such true boundaries, in connection with that within them, being adverse to every other claimant and sufficient, if continued long enough, to make a good title. Actual occupancy of land to the exclusion of the true owner, regardless of whether in good faith or bad faith, whether by mistake of boundaries or with intent to claim the land with full knowledge that the claim is wrongful, satisfies the calls of the statute. Such adverse possession of part of a tract under color of title, with intent to claim the whole, in legal effect extends to the boundaries of the tract, and such actual possession beyond such boundaries, operates to the same effect upon the title of any other claimant, except that the twenty-year statute applies instead of the ten-year statute. Ill. S. Co. v. Budzisz, 106 Wis. 499, 511, 81 N. W. 1027, 82 N. W. 534; Pitman v. Hill, 117 Wis. 318, 94 N. W. 40; Clithero v. Fenner, 122 Wis. 356, 99 N. W. 1027; Off v. Heinrichs, 124 Wis. 440, 102 N. W. 904; Ill. S. Co. v. Bilot, 109 Wis. [248] 418, 84 N. W. 855, 85 N. W. 402; Bishop v. Bleyer, 105 Wis. 330, 81 N. W. 413. In Bishop v. Bleyer, supra, the court disposed of a similar eobtention to the one now made by saying, in effect, the adverse claimant, for the statutory period, continuously occupied the premises in dispute, as owner, to the exclusion of every other person, up to the line of the fence; that gave him the title by adverse possession under the twenty-year statute for any portion of the occupied premises not within the calls of his deed. The necessity for the system which is written into our Code in order to avoid confusion and uncertainty on the subject of adverse possession, is significantly illustrated by the claim here made and another, which, until recent years;, was often dignified as legitimate and is yet disturbing in the administration of justice. On the one hand it was claimed that adverse possession could not be grounded on possession as owner under mistake of boundaries, while on the other it was claimed that such possession must, to be effective, be characterized by good faith. ■ The result was the theory that if a person, as owner, maintained exclusive, continuous occupancy by the location of his building or otherwise, partly within and partly without his true line, according to his paper title, for twenty years or any greater length of time, he was still in danger of being dispossessed of the latter portion because, if his occupancy was by mistake of boundaries, that was fatal to his claim of title, and if he intended to claim as owner regardless of the true boundary, or knowing that he was a trespasser, that was in bad faith and likewise fatal to his title. It is obvious that the only sensible, safe, and really equitable rule is to make the physical characteristics of possession, excluding all other persons, the sole test of adverse possession, and so it was written in the Code. It has been lost sight of at times. Experience has demonstrated, clearer and clearer, as time has progressed and the [249] importance of stability of titles bas grown witb increase in value of property, the wisdom of the Code makers in incorporating into their work the simple test of adverse possession indicated. A claim is made that evidence by respondent Fannie H. Morrison, that in 1906, she, knowing that plaintiff was setting np some claim to the strip of land in dispute, endeavored to settle it to avoid litigation, was enough, of itself, to involve the character of her possession in such’uncertainty that its true character was a jury question. There are two answers to that. First, the evidence shows, plainly, that there was no offer to purchase from appellant, conceding title in her, or under circumstances inconsistent with Mrs. Mor-risonfs claim of title by adverse possession. Second, the premises had been in the actual occupancy of Mrs. Morrison and her predecessors in title continuously for some twenty-four years before the attempt to purchase appellant’s claim. Her title was then unimpeachable. An attempt to obtain a' paper title after having acquired title in fact could not, under any circumstances, affect her real status as owner. Some general principles are discussed in the briefs of counsel for appellant, with numerous citations of authorities, to support the claim that the court erred in deciding from the evidence as matter of law, that the possession of respondent and her predecessors in title had been sufficient to satisfy all the requisites of title hy adverse, possession. It is enough to say, in respect thereto, that such principles are in harmony with the general rule of the Code, that upon unexplained exclusive, continuous occupancy of land under a chain of title, by one not the true owner, for the statutory period to make title by adverse possession, being shown, the ‘presumption of seisin during any part of such period in the true owner, disappears and there arises in place thereof the presumption that, during all such period, -the possession had all the requisites of an adverse holding, subject to be re [250] butted by proof that it was in. fact subordinate to the right of the true owner, but conclusive in the absence of such rebuttal. Here there was, without question in our judgment, continuous occupancy by Mrs. Morrison and her predecessors in title up to the line fence, including all of the strip in dispute. That established, plainly, disseisin of any other claimant. It showed, without room for reasonable controversy, disseisin of all but the one actually seised, for the full statutory period, putting it beyond the jurisdiction .of any court to interfere therewith in favor of any other claimant. Sec. 4201, Stats. (1898), provides: “No action for the recovery of real property or the possession thereof shall be maintained unless it appear that the plaintiff, his ancestor, predecessor or grantor was seized or possessed of the premises in question within twenty years before the commencement of such action.” The foregoing in connection with sec. 4210 and sec. 4211, Stats. (1898), in a case of this sort; one where the actual exclusive occupancy as owner for the full statutory period is unquestionable, divests every person adversary to the one in possession of every element of right and vests the whole title in him, if he had none whatever before the completion of the statutory period. It follows that the court properly directed the verdict against appellant and rendered judgment accordingly. By the Court. — Judgment affirmed.