Lusk v. City of Yankton

McCOY, J.

This action was brought to determine adverse claims of title to a certain parcel of land' lying between the Missouri river and First street of Todd’s plat of the city of Yankton, the same being a strip of land varying in width from 130 feet to 225 feet, 3 blocks in length, commonly known in the city of Yank-ton as the “levee.” Findings and judgment were in favor of defendants, from' which judgment the palintiffs appeal.

[t] Among other findings of fact the court found that for more than. 40 years prior to 19.14 the city of Yankton had been in exclusive, hostile, open, notorious, continuous., and adverse possession of said land, presumptively with the knowledge of plaintiffs’ grantors and predecessors in interest. Appellant contends that the court erred in its- conclusion of la.w that the defendant city 'cf Yankton had acquired absolute title to said real estate by such' adverse possession, for the reason that there are mo findings of fact sustained by the evidence that would warrant or justify such conclusion of la¡w. It appears from the evidence preserved in the record that the title to. the tract of land comprising Todd’s plat to the city of Yankton between i860 and June 5, 1868, was in much doubt. On the 5th day of June, 1868, a patent for said land, including the strip of land in dispute, was .issued to J. B. S. Todd; that on the 21st day of August, 1868, said Todd made and file a plat dividing said tract of land into, city lots, blocks, streets., and avenues, thereby dedicating the said streets and avenues to the public use of the city of Yankton, and on the said plat so filed on the *501 21st id'ay of August all-that strip of ground lying immediately south of the south end of blocks 2, 3, and 4, and extending to. the Mis1souri river, was designated as First street, thereby making a wide ■street varying in -width from 210 to 305 feet; the said plat so hied on the 21st day of August contained1 mo -surveyor’s certificate as to the correctness thereof as required by the then existing law. One week later, on the 28th day of August, 1868, the said Todd- withdrew from record the said plat theretofore filed by him on the 21st day of August for the purposes of corrections and alterations, and on the said 28th day of August made and filed another plat duly cer-' tified by a surveyor as to the correctness thereof- and with .the alteration appearing thereon that immediately south -of said blocks 2, 3, and 4 was a street 80 feet in width designated as First street, and thereby leaving the strip involved in this suit excluded and outside the plat then so filed by him. One lof the contentions- of ■respondent is that the land in question was by said plat filed on August 21st dedicated to the city of Yankton, as the part of a ■street, and that the subsequent withdrawal of said plat and filing of another a week later co-uld not and' did not affect the dedication so made, and that thereafter the city of Yankton and the public accepted said dedication, land by reason thereof has ever since been the owner of and entitled to the use and control of the whole of said strip of land between the Missouri river and the south end -of said blocks 2, 3, and 4. For the reason that the trial court has based the conclusions of law and judgment solely upon the findings of fact as to respondent’s 40 years of exclusive, continuous, adversé possession of shid land, the question, of said dedication growing out of the filing of said plats becomes .immaterial and a matter not necessary to a proper determination of the issues involved on this appeal, and we shall therefore only consider the question of adverse possession and the title obtained thereby by respondent.

[2] It appears -from' the record that as early as August, 1872, the city of Yankton commenced exercising open and notorious acts of ownership .and- control -over the strip of land in question by leasing and giving licenses to many persons to occupy the same ¡with storage houses and' other building's’, -by. granting rights of way across the same, and by using parts thereof for gravel and1 sand pits and other purposes. Such open, notorious, exclusive, and continuous acts of ownership and control by respondent, while possibly *502 not lasting 40 year's, were, however, continuous at all times from August, 1872, up- to and including the year 1907, and being a period much longer than 20 years necessary to -obtain full and complete title by adverse possession. We are therefore of the -opinion, and so hold, that at .the time of the beginning of this action the respondent city was- the absolute owner by adverse possession 'of said land, and that the findings of the court in this relation were fully sustained1 by the evidence. It appears- from the record' that in the year 1907 one Josephine Moore, a -daughter and heir of said Todd, acquired by deed's all the interest of all the other heirs of said Todd, then deceased, in and to the lands in question, and that she thereafter in 1910 instituted proceedings in. probate by virtue of which the lands' in question were distributed to her and to all other heirs of said Todd of whom she -had -obtained' said deeds; that on the 14th day of November, 19.12, .the- said1 Josephine Moore by quitclaim' deed -conveyed the land in question to- the Yankton Pressed Brick -Company, and on the 5th day of August, 1915, the Yankton Pressed Brick 'Company by warranty -deed conveyed said land it-o plaintiffs; that on the 14th. day -of November, 1912, the same date on which said Josephine M'oore -conveyed said land- to the said brick company, the -sai-d brick company gave to -her a mortgage for $1,500, evidently either a portion or all of the purchase money coming to- her as consideration, for said convejrance; that thereafter ¡the said brick company failed to pay said mortgage indebtedness, and upon a foreclosure of said mortgage said Josephine Moore became the purchaser at such foreclosure sale, and thereafter, on the 18th day of May, 1915, the said brick companj redeemed the said property from- such foreclosure sale. It will be noticed that Josephine M'oore by a quitclaim deed -Conveyed her interest in said land' to the -said brick -company on November 14, 1912.

[3] At that time the respondent city was in the actual possession of said land, which was .notice to the world of its title which it had long prior .thereto acquired by Completed and fully ripened adverse possession. The plaintiffs in this case were officers andl stockholders of the brick company, and had notice of respondent’s title at the time they received -said deed and -at the time they made redemption from said mortgage sale, for the reason that at *503 said' times the respondent was in possession claiming title to this' land, which gave .notice to the world of respondent’s rights.

[4] Another circumstance is also sufficient to put the brick company and plaintiffs upon inquiry -and notice, namely, the plaintiffs and said brick company knew that the brick company acquired title, if any, through a quitclaim deed from' Josephine Moore. This is one of the instances where a quitclaim' deed is a danger signal and charges those claiming under it with notice of .all -outstanding adverse equities. 39 Cyc. 1693; Parker v. Randolph, 5 S. D. 549, 59 N. W. 722 , 29 L. R. A. 33, and note; Fowler v. Will, 19 S. D. 131, 102 N. W. 598 , 117 Am. St. Rep. 938 , 8 Ann. Cas, 1093. In the case of Byron Reed Company v. Klabunde, 76 Neb. 801 , 108 N. W. 133 , the court said:

“A' quitclaim deed is of itself a red light to warn the grantee that the rear end of the transaction is exposed to equities.”

[5-7] The respondent city long -prior to any claim of title on the part of the PressedBrick Company'or plaintiffs had perfected and acquired full and complete title to this land by adverse possession. -After having so perfected title by 20 years’ exclusive- adverse possession, it was not then incumbent or necessary on the part of respondent to still keep on perfecting and completing the same from- year to year in order to. hold the title theretofore- already completely acquired by such 20 years’ adverse possession. After a person has fully and completely acquired title' :by 20 years’ adverse possession, it is not then necessary for such person to longer remain in actual possession in order to retain or protect his title. The only way a .person -who has so acquired- complete title by ad-, verse possession can thereafter lose or divest himself of such title is by alienation in writing or by some third person thereafter acquiring title by adverse possession as against him-, or by some clear acts or conduct amounting to an estoppel- toi claim such title. 2 C. J. 256-259. The fact that the original owner of the land -reT enters and pays-taxes will not affect -a prior acquired title by adverse possession. Cramer v. Walker, 23 Idaho, 495 , 130 Pac. 1002 . The .facts in- this -case do noifc show that respondent city by writing or any other -act transferred or -surrendered title of this, land to plaintiffs' or to any of plaintiff’s predecessor's in interest, or in any manner whatsoever recognized or by conduct or otherwise estopped itself from claiming, title as- against saiidl,brick'company or plaintiffs. *504 The record does show that (the brick company and plaintiffs undertook to take possession and held adversely to respondent for a -short time, but the findings-, and evidence show- that the respondent notified plaintiffs- and their p-red-eces-sio-rs in interest to keep- off .this land, and that respondent at all times during the adverse claim of plaintiffs and said brick company claimed to -o-wn this land, and instructed its attorney to ¡balee proper steps- to- protect its title. Therefore we are of the view that respondent has in no- manner estopped itself from -claiming full and complete title as .aga-inst appellants who are not innio-cent parties without notice o-f respo-ndent’e rights. There is some evidence to the effect that some of the city officials were stockholders in said brick -company and might have been interested in the city losing its 'title. But by no lawful aot of th-e official's -of respondent -city authorized t-o- act for it did it ever by any kin-d ¡of -conduct estop- itself from claiming title to- s-a-id land. After ¡the respondent city had acquired title by fully ripened adverse possession it co-ul-d only divest itself o-f title -by some method of lawful alienation. Under the -circumstances the acts of J-o-sephine Moo-re and the brick company and plaintiffs we're'wrongful and hostile .as -against the- respondent. T-hey were trespassers on respondent’s rights, and -coul-d gain no equities bv such wrongful acts or such adverse possession short of 20 years’ open, notorious, and continuous trespassing, or by 10 years-’ adverse possession and payment of taxes under color of title, tíotoe of which was- ever done. 2 C. J. 256.

[8] Some contention is made that respondent, -as a matter of equity, should- reimburse plaintiffs- for the redemption money paid. In the first plaice, plaintiffs -did n-o-t -pay said'redemptio-n money, but the record shows that the same was paid b-y the brick company, and in th-e second p-lace it would be highly inequitab-le to require the respondent so- to- -do-. If respondent was- compelled! to- reimburse the plaintiffs for th-e amount of this- redemption money, it would thereby be 'compelled toi pay al-1 or -a large p-art -of the value of this land in -order to retain its- -title- thereto-. 'Considering' th-e- fact that neither' the plaintiffs nor the brick -company were -innocent purchasers without notice o-f respondent’s rights, but were wrongdoers and trespassers, it would not be possible or equitable- ith-at 'respon■dent shloiil'd thus- be d-eprived-'o-f title -or -full'right to this property *505 to which it had1 become the. absolute owner long- prior thereto by lawful adverse possession. '

[9] It also appears from the record thait said land in. .question was assessed for taxes for the years 1913, 1914, 1915, and 1916, by the taxing officers of 'respondent city, and that such' taxes were thereafter paid by ithe said Pressed Brick Company, Oir these plaintiffs. We are of the viewi that the assessment of taxes and the receipt of taxes on- said land for said years by the taxing officers of said respondent city in no way estops or precludes it from claiming or having title to said land ¡by prescription based upon its former more than 20 years’ adverse possession. Cramer v. Walker, supra. Under the provision's, of section 54, Code of Civil Procedure, it? would require .at least 10 years’ payment of taxes under adverse color of title to establish title in plaintiffs and their predecessors bv adverse .posssesion and. payment of taxes.

All assignments of error having been considered,'and finding no error in the record, the order and judgment appealed from are affirmed.

SMITH, J., took no part in this decision.