Olewine v. Messmore

— 480 — Opinion, Me. Justice Clark: There is some evidence that the lands in dispute are embraced within the corrected boundaries of the John Lynch warrant, dated September 30, and surveyed December 2, 1815. The testimony as to the actual location of this survey is meagre, but there was perhaps sufficient to justify a submission to the jury, and the verdict is therefore conclusive upon that question. Besides, in the argument of counsel the fact appears to be conceded, and, as no question is made as to the sufficiency of the proof, we must assume that fact. The interference with the Joseph Gratz, an older warrant, surveyed September 9, 1794, was thrown out of the Lynch when the latter was surveyed for patenting in 1830; and the Lynch, properly located, without any interference with other original surveys, must, according to the verdict of the jury, be taken to embrace the premises in dispute. The plaintiffs, having shown the warrant and survey to the John Lynch, gave in evidence a deed from sheriff Craft to John Huston, dated June 7, 1824, by the recitals of which it appeared to have been sold upon execution process as the property of Joseph Huston, and purchased by John Huston, who afterwards made a deed to Andrew Stewart, dated December 1, 1832; both of which deeds were duly executed, acknowledged, and recorded. These deeds purported to convey the land covered by the John Lynch warrant, but there were no intermediate conveyances connecting Joseph Huston with the Lynch title. The deeds were therefore only admissible to exhibit col- or of title and claim in Andrew Stewart, to whom a patent issued from the commonwealth April 3,1833. The patent was followed by proof of settlement and actual occupancy of the Lynch by Andrew Stewart from the year 1822. In that yeai he erected a stone house, which has since been occupied as a tavern stand on the National turnpike. He also cleared and cultivated a portion of the tract, and it is shown that he has been in the continuous occupancy of the Lynch tract since that time. The defendants claim title under Jonathan Downer, who, at an early day, settled upon the Joseph Gratz survey. About the year 1820 he built the Downer tavern stand, also on the National road, but further up the mountain, and remained in the occupancy and cultivation of the Gratz until the time of his — 481 — death. In the year 1846, proceedings in partition were instituted in the court of Common Pleas of Payette county lipón the estate of Jonathan Downer, deceased. An inquisition was taken, and purpart B, known as the Downer Tavern Stand or Chalk Hill, containing 87 acres and allowance, which embraced the lands in dispute, was allotted to Jonathan Springer Downer ; but the sheriff’s deed, by some arrangement, was afterwards made to Samuel Shipley, and the defendants claim through a series of conveyances from Shipley. The defendants’ contention is that Downer died seised, no.t only of the Gratz, but of that part of the Lynch now in dispute; that he, and those claiming under him, have been in the actual and adverse possession of the disputed land for a long period of years, and that their title is good under the statute of limitations. The patent to Andrew Stewart was prima facie evidence of title: Lessee of James v. Betz, 2 Binn. 12; Bixler v. Baker, 4 Binn. 213. The patentee is regarded as a trustee for the right owner: Hoffman v. Bell, 61 Pa. 444; but the patent conveys the full legal title of the state, and is evidence of title, especially against one who relies on possession alone, who shows no title, and whose rights, if any, accrued after the date of the patent: Downing v. Gallagher, 2 S. & R. 455; Whitmire v. Napier, 4 S. & R. 290; Diggs v. Downing, 4 S. & R. 348; Gingrich v. Foltz, 19 Pa. 38; Balliot v. Bauman, 5 W. & S. 150; Hull v. Campbell, 56 Pa. 154; Smith v. Vasbinder, 77 Pa. 127; Broad Top Coal Co, v. Coal Co., 65 Pa. 442, and cases there cited. The patent for the Lynch issued in 1833 to Stewart, who by his tenants was then, and is now, in the possession of the tract, by actual residence, cultivation, and improvement. Neither the warrantee, nor any one claiming under him, comes forward to impeach his title ; nor is any adverse right or title shown to have existed at the time the patent issued. Under such circumstances, the plaintiffs were entitled to stand upon the patent, and it devolved upon the defendants, under their claim of adverse possession, to exhibit all the acknowledged requisites of a possession efficient to bar the entry of the legal owner or the holder of the title: Sheaffer v. Eakman, 56 Pa. 144. Stewart, it is true, was not in actual possession, by residence or cultivation, of that portion of the Lynch tract now in dis — 482 — pute, but, as Chief Justice Lewis said in Hole v. Rittenhouse, 25 Pa. 492, “ if any principle in the law of Pennsylvania can be regarded as settled by argument and authority, it is that which affirms that the legal title to uncultivated lands draws to it the possession, and that this possession is to be deemed actual, for all purposes of remedy, until it is interrupted by an actual entry and adverse possession taken by another.” Moreover, Stewart being in the actual possession of the Lynch tract, by residence and cultivation, his possession extended to and covered the entire tract, according to the lines as they were found upon the ground. But it is essential to the validity of an adverse possession that there shall be an actual entry upon the land of the rightful owner, and an actual, visible possession taken of some part of it. Residence and possession, with cultivation on adjoining land, with boundaries including the valid title of another, will not give actual possession of the latter, although accompanied by the ordinary use of it as woodland, in connection with the part resided upon or cultivated. To maintain an actual possession to woodland as such, it is indispensable that the intruder take actual possession, by residence or cultivation, of a part of the tract to which the woodland belongs: Hole v. Rittenhouse, 25 Pa. 491, 37 Pa. 116. Actual possession may be by residence without cultivation, or by inclosure and cultivation without residence; and when there has been such actual possession taken of part of the land of another, under a bona fide claim, accompanied by a designation of boundaries, and the ordinary use of the woodland, and such use and possession is continued for 21 years, the intruder gains a title to all included within his lines. What constitutes an actual possession, such as creates an ouster and tolls the possession of another, has often been stated, and it does not consist in doing temporary acts upon the land without an intention to seat and occupy it for residence or cultivation, or for some other permanent use consistent with the nature of the property. Applying these principles, which are now so well settled as to be indisputable, to the case in hand, it is plain that the defendants’ claim of title under the statute of limitations is wholly unfounded. Jonathan Downer, about the year 1820, settled on the Joseph Gratz. There is no evidence whatever that his claim ex — 483 — tended beyond tbe lines of that survey. It is certain that he toot no actual possession of any part of the Lynch, either by residence, cultivation, or inclosure. He died some time prior to the year 1846, and then for the first time is there any definition of the boundaries of the Downer tract which would embrace the lands in dispute. This portion of the Lynch survey would then seem to have been embraced in the survey of the decedent’s lands, was allotted with purpart B to one of the heirs, and was afterwards conveyed to Samuel Shipley. In no sense can it be said that Jonathan Downer died seised of the lands in dispute, for he had neither the title nor the actual possession; nor had he the title which would draw the possession to him by construction. Indeed, there is not the slightest evidence that he at any time claimed this land as his own, or denied the title of Stewart. The history of the defendants’ claim of title begins with Samuel Shipley, who, under the proceedings in partition of the estate of Jonathan Downer, deceased, took the sheriff’s deed for purpart B in 1847, and went into the possession under his deed in 1848. He says Stewart owned the land adjoining him on the east, and that the schoolhouse was 150 yards east of the line to which he claimed, and the Cool Spring 150 yards distant from the school-house; that the line to which he claimed ran east of the Cool Spring, and west of the school-house; from which it is fair to infer that his claim was in accordance with the lines in the partition plot, and according to the description in his deed. He says he chopped wood, made rails, and cut posts and fence-rails on the land about the Cool Spring; but the land was not cleared when he lived there, and there is no evidence that any part of the Lynch tract was since inclosed or cultivated by Shipley, or those claiming under him, until about the time of the bringing of this suit. Shipley says he cleared a couple of acres above the head of the Cool Spring, west of the spring, on the hill, at the place where an old road went from the Kentuek or Falls road down to the saw-mill; but, although he vaguely estimates the distance from the spring, he cannot say and does not know, that the clearing was on the land claimed by Stewart. If this clearing was made and maintained, it would have been an easy matter, by a proper location of the lines of the Lynch survey on the ground, to have shown whether it, or any considerable — 484 — portion of it, was within these lines. There was no such evidence ; on the contrary, the proof is plain and wholly uncontradictory that this clearing was not on the Lynch tract at all. But, however this may be, there is not the slightest proof that this clearing was either inclosed or cultivated, or that it was such an encroachment upon the plaintiff’s lands as should have arrested his attention. The cutting of fire-wood, making of rails, and even the clearing, were but so many single and separate trespasses, unless followed by residence, inclosure, or cultivation. Adverse possession of land may be said to be founded in trespass, but it must be a trespass constantly continued by acts on the premises. It must challenge the right to all the world. The claimant must, in the language of Mr. Justice Gibson, “keep his flag flying, and present a hostile front to all adverse pretensions.” The burden of proof was upon the defendants to establish all the elements of a title by the statute, and, in the absence of proof to sustain any one of the requisites of such a title, it must be presumed not to exist. Samuel Shipley, in 1860, sold Chalk Hill to Millford Shipley, who entered into possession in 1861, and occupied the tract for eight years. He says he cut timber above the Cool Spring, both above and below the road, but his testimony is vague and uncertain as to the locality. The charge of the learned judge of the court below was much more favorable to their pretensions than the defendants deserved. Whilst we would be unwilling, perhaps, to adopt the reasoning of the charge as a correct exposition of the law of this case, the defendants certainly cannot complain of it. The judgment is affirmed.