Janke v. McMahon

The action is to recover the possession of a narrow strip of land, nearly three feet in width and forty feet in depth, and to quiet plaintiff’s title thereto. The appeal is from an order denying defendant’s motion for a new trial. It is admitted by appellant that the record title is in respondent but its normal effect is sought to be obviated by the claim of adverse possession. Plerein it is the contention that “nowhere does it appear that the plaintiff or her predecessors or any one of them had actual physical possession or ever occupied the disputed strip of land, the surface of the soil; on the contrary, the undisputed evidence is that neither the plaintiff nor any of her predecessors ever had such possession, but that the father of the defendant was continuously in the occupancy and exclusive possession of the disputed strip, since March 3, 1862, up to the time of his death, about 1890, and that thereafter, the defendant, a son and heir of the person so in possession, has continuously occupied and actually held possession of the disputed strip; that on the line between the disputed strip and plaintiff’s property there was constructed, about 1862, a building and fence and that the building and fence remained on said line without objection on the part of any one until the fire of April, 1906, and that immediately thereafter the defendant rebuilt the said building and fence and it was not until the latter part of 1907, long after defendant had made his improvements, that any claim to the disputed strip was made by plaintiff or any one else. ’ ’ It was conceded, however, at the trial that, by reason of his failure to pay the taxes, defendant’s possession had not ripened into a title by prescription, but it was asserted that the father became the owner by virtue of his possession of the disputed strip and the son had succeeded to the father’s in

The evidence as to his occupancy of the land is brief and it may be well 'to exhibit it in full. It appears in the testimony of appellant as follows: “My father was in possession of this piece of property about forty-six years. He obtained possession of the property in dispute in 1862 and built on if one year afterward. He built a three-story house on it and this covered the land in dispute. There was a fence on the easterly side of the property that he had in Ms possession the same place as where the fence is now. There was a four-foot alleyway between the fence and the old house. The stairs ran into that alley-way from the back porch. The old house ran back sixty feet to where there was a back porch built coming down into this alleyway on the two feet ten inches that is in dispute. The stairs ran into that alleyway from the back porch. Neither Mrs. Janke, the plaintiff, nor her husband, to my knowledge, at any time had possession of any portion of that two feet ten and three-fourths inches, not since my father bought it. There was no agreement between my father or Mr. or Mrs. Janke with respect to the dividing line, but my father had the fence on it before Mrs. Janke’s house was ever built.”

It is thus to be seen that the only evidence of adverse possession consists of mere occupancy. The disputed strip'was inclosed with and as a part of the lot belonging to McMahon, Senior, and the back porch of his house partially rested upon said strip but there is no further basis for the claim of title. There is no evidence that he ever declared that he owned the land or -that he intended to retain it as against the holder of the legal title. In short, there is no showing, beyond the fact of possession already pointed out, of any act or declared purpose on the part of McMahon indicative of a claim of title. While during the period of his occupancy the statute did not, as it does now, require the payment of taxes, to vest title by adverse possession, it did exact, as it does now, that the possession must be for the statutory period under a claim of right in order to prevail over what we denominate the legal title.

Occupancy was, then as now, only one of the elements that constitute title by prescription and the rule of law has -ever

In other words, the burden of proof is upon the person in possession and claiming against the holder of the legal title to show that his occupancy is hostile and not subordinate to the legal title. He must prove all the essential elements of adverse possession. (Sharp v. Daughney, 33 Cal. 505 ; De Frieze v. Quint, 94 Cal. 653 , [ 28 Am. St. Rep. 151 , 30 Pac. 1 ]; Ball v Kehl, 95 Cal. 606 , [ 30 Pac. 780 ]; Baldwin v. Temple, 101 Cal. 396 , [ 35 Pac. 1008 ]; 2 Am. & Eng. Ency. of Law and Prac. 363.)

It is equally true that possession may be open and notorious and still not adverse. (Thompson v. Felton, 54 Cal. 547 ; Shiels v. Haley, 61 Cal. 157 ; Rix v. Horstmann, 93 Cal. 502 , [ 29 Pac. 120 ] ; Baldwin v. Temple, 101 Cal. 396 , [ 35 Pac. 1008 ]; Woodward v. Faris, 109 Cal. 12 , [ 41 Pac. 781 ]; Peters v. Gracia, 110 Cal. 89 , [ 42 Pac. 455 ].)

The reasonable and creditable inference, harmonizing with the presumption of law, is that McMahon, Senior, had no desire to appropriate land belonging to another and that he laid no claim to property that he did not own but that, through an honest mistake as to the location of the division line, or through inadvertence or carelessness, he included the said strip within his inclosure, holding himself in readiness to yield what a survey or other satisfactory evidence should legally exact of him.

We may suspect that he believed that his lot extended to the limits of the inclosure but such belief is not equivalent to a claim of title or right and therefore not sufficient to constitute an adverse possession. (Grube v. Wells, 34 Iowa, 148 ; Palmer v. Osborne, 115 Iowa, 715 , [ 87 N. W. 712 ]; Hess v. Rudder, 117 Ala. 525 , [ 67 Am. St. Rep. 182 , 23 South. 136 ]; Woodward v. Faris, 109 Cal. 12 , [ 41 Pac. 781 ].)

The cases cited by appellant hold nothing to the contrary but are in harmony with respondent’s position.

In Woodward v. Faris, 109 Cal. 12 , [ 41 Pac. 781 ], it was said: “Title to land may be acquired by adverse possession for five years within the limits of an inclosure, although the inclosure was made under a mistaken belief as to the boundary of the land, where it is claimed as matter of fact that the fences were upon the line; but, if the inclosure was made without claiming that the fences were upon the line, but with the expectation of moving them to the true line when it should be determined, the possession would not be adverse, and the statute would not run.”

The character of the title acquired by adverse possession and not by mere occupancy is the principal question discussed in the well considered case of Arrington v. Liscom, 34 Cal. 365 , [ 94 Am. Dec. 722 ], and it is there properly held that “a party who has been in the exclusive adverse possession of lands for a period of time which, under the statute of limitations, vests him with a title thereto, may maintain an action against a party claiming under a record title, to have said adverse claim determined and adjudged null and void as against him.” In other words, adverse possession for the requisite period .confers a substantial title with all of the incidents of possession under a valid written title.

The point decided in Cannon v. Stockmon, 36 Cal. 535 , [ 95 Am. Dec. 205 ], was that the five years of “continued, exclusive, adverse possession” need not be “next preceding the commencement of the action.”

That possession under a claim of right was in the mind of the court in the ease of Baker v. Clark, 128 Cal. 181 , [ 60 Pac. 677 ], is disclosed by the following quotation: “Baker from that time, continued in the open, notorious, uninterrupted adverse and exclusive possession of the premises, claiming the same in his own right.”

In Sousa v. Pereira, 132 Cal. 77 , [ 64 Pac. 90 ], it was held that “The plaintiff in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary’s title; and where the plaintiff shows no title, the defendant in possession is entitled to judgment, regardless of whether he has acquired a prescriptive title by adverse possession or not.” This, of course, must be true, since “occupancy for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will, or succession.” (Civ. Code, sec. 1006.)

We omit specific mention of the other cases cited by appellant, but, in dismissing this contention, it may be said that not only is there an entire lack of evidence that the senior McMahon’s occupancy was under a claim of right, but appellant has furnished an important circumstance in aid of the presumption that the possession was in subordination to the legal title. He testified in effect that the disputed strip was not assessed to him nor to his father. The fact that one in possession of land does not have it assessed to himself is, of course, strongly persuasive that he does not claim to be the owner.

Either McMahon, senior or junior, had only to refer to his deed to ascertain that he was entitled to only twenty-three feet and six inches instead of twenty-six feet and a fraction included within the inclosure. He must be presumed to have been familiar with the terms of the instrument that constituted his muniment of titl'e. If he did not actually know the extent of his property he had the means of knowledge within reach and he would not be heard to say that the fence was located upon the accepted division line.

“Where there is an -acquiescence in a wrong boundary, when the true boundary may be ascertained by the deed, it is treated, both in law and equity, as a mistake, and neither party is estopped from claiming to the true line. The boundary is considered definite and certain when by survey it can be made certain from the deed.” (Hartung v. Witte, 59 Wis. 285 , [ 18 N. W. 175 ].)

“Where a boundary fence was built on what the parties supposed was the true line, and there was no dispute, and it was not known that there was any uncertainty, an establishment of the boundary by implied consent and acquiescence was not shown.” (Peters v. Reichenbach, 114 Wis. 209 , [ 90 N. W. 184 ].)

It is further contended by respondent that whatever title McMahon, Senior, may have acquired is of no consequence since appellant has furnished no evidence that he has succeeded to that interest. In this connection it is claimed that since the father left' a will, and the decree of distribution in the estate does not purport to distribute the controverted strip

"We deem it unnecessary, however, to consider this phase of the controversy.

Appellant’s specification as to the insufficiency of the evidence to support the finding as to the rental value of $37.50 per month may be passed by since no part of it was allowed in the judgment.

Attention is called to certain findings that relate to contemplated improvements upon plaintiff’s lot, and it is contended that at the time of the trial the situation had changed so that said findings did not present the truth. But the court properly found the facts as they existed at the time the complaint was filed.

The same suggestion may be made as to the criticism that “the finding that defendant entered into possession within one year last past, is at a time subsequent to the filing of the complaint. ’ ’

That the market value of plaintiff’s land would be depreciated by the excision and loss of the three-foot strip would seem to require no direct evidence. It is indeed quite manifest from the circumstances appearing in the case.

Finding 29 deals with the actual occupancy of the disputed strip and it is a fair inference from the evidence that neither the residence of appellant nor of his father was constructed “up to said line.” At any rate, this finding and some others attacked by appellant are entirely immaterial as they could not have altered- the judgment if they had been in favor of appellant. (Witcher v. Conklin, 84 Cal. 499 , [ 24 Pac. 302 ].)

Likewise, the contention that the court failed to find upon certain averments of the answer does not demand specific consideration for the reason that certain findings of the court, which are supported by the evidence, control and uphold the judgment. (Southern Pac. Co. v. Dufour, 95 Cal. 615 , [ 19 L. R. A. 92 , 30 Pac. 783 ].)

The judgment is, substantially, “That ever since the 21st day of March, 1883, plaintiff has been and now is the owner

The vital features of the judgment, therefore, consist in the adjudication of plaintiff’s title and right of possession to the disputed strip, of the invalidity of the claim on the part of defendant to any title or interest in or to said land, and of the unlawful occupancy by defendant of said tract and of his illegal interference with the enjoyment of the same by respondent in consequence of structures placed thereon by said appellant. To this the other directions in the judgment are merely incidental and without particular significance.

Looking, then, to the findings, it is discovered that they are full and complete as to the ownership of respondent and her right to the possession of the disputed strip, that defendant without right has entered upon it, placed improvements thereon and continues to maintain them and refuses to vacate the premises, although notified in writing by respondent to do so, and that the action is not barred by the statute of limitations.

These are the essential findings, they control the judgment and they are abundantly supported by the evidence.

Objections are made to several rulings of the court as to the admissibility of evidence, but we find no prejudicial error.

Under some circumstances, no doubt, such inquiry would be permissible as against the owner of the legal title but the ruling here was correct for the reason that the court was justified in concluding that at the time the improvements were made respondent believed that they were not located upon her land and appellant knew or at least had the ready means of knowing that they were located upon her land. Indeed^ without reciting it in detail, we may say that the evidence, consisting of instruments executed by appellant and declarations and acts made and done by him, amply justify the inference that he knew he had no legal claim to the property in controversy.

It is believed that the conclusion of the trial court is right and the order denying the motion for a new trial is therefore affirmed.

Chipman, P. J., and Hart, J., concurred.