Spath v. Sales

Mr. Justice Bean

delivered the opinion of the court.

1. According to the record, the plaintiff, Edward Spath, has resided upon the land for a period of about 20 years, and with his family for 17 years. He first purchased the tract of one Freeman, who had settled upon the premises and built a house thereon. Shortly afterward he purchased the interest of Jeremiah Stan *271 ley in the tract, and in 1898 obtained a quitclaim deed to the same from him. During his possession of the land he has constructed a four-room house, and a barn, and dug a well upon the same. He has also fenced the land, cleared it of stumps and bushes, and cultivated about 6 acres thereof. He has set out about 140 fruit trees and a quantity of small fruits. For about 17 years he has leased 2.45 acres of the land to Multnomah County for a gravel pit. The land has been fenced for 19 or 20 years, during all of which time the plaintiff has claimed to be the owner of the same. It may be assumed for the purposes of this case that the record title to the land in dispute is in the defendants; the question being: Has the plaintiff obtained title thereto by adverse possession? It is claimed by the defendants William Sales and Ernest D. Holgate that soon after the plaintiff settled upon the land he stated that he was trying to get title to it from the government, and that, “If I cannot get title from the government, I will buy you out, or else move off”; that Jeremiah Stanley was present at the time; and that afterward the plaintiff purchased his interest. It appears that plaintiff was sick at the time this conversation was alleged to have been held. He denies any knowledge thereof. Plaintiff’s acts and the value of the improvements clearly indicate that he claimed ownership of the land during all the period mentioned. The defendants resided near the tract in controversy. They had their land surveyed 16 or 17 years ago by the county surveyor, who ran the line north of the land in question so as to exclude the same from the Page-Stanley claim. In order to straighten the title, the plaintiff requested the defendants to execute a quitclaim deed.

Defendant William Sales testified that Mr. Green-leaf, who surveyed the land, said, “Well, that is as far as I can go ”; that the surveyor said that it was a ques *272 tion for the courts to determine. It seems that the defendants sold an acre in the southwest corner of their tract, and located the same on the north side of the county road, so as to exclude the land in controversy in such a manner as to indicate that they did not claim the land in dispute. The matter appears to have drifted in this way during all these years without much having been said and nothing done by the defendants, who slept upon their rights during all this time. The plaintiff continued to reside upon, cultivate and improve the land, and contracted to sell one acre thereof to a Mr. Ferris, who has erected a house thereon of the value of about $4,000. The weight of the testimony shows that the plaintiff has been in the open, notorious and adverse possession of the land, living upon, improving and cultivating the same, keeping it fenced, paying no rent to anyone, and claiming it adversely to everyone for more than the statutory period.

2. It is claimed by the defendants that the plaintiff’s possession has not been adverse, for the reason that his claim of ownership has not been against, all the world, in this, that he recognized the title in the government of the United States. "Without adverting to the weight of the testimony upon this point, the contention may be eliminated to a great extent by applying the rule enunciated by this court in the case of Boe v. Arnold, 54 Or. 52, 58 ( 102 Pac. 290 , 20 Ann. Cas. 533), wherein Mr. Justice McBride, in an exhaustive opinion, thoroughly discussed the question. It was held, in effect, that one claiming title to land by adverse possession for a period of 10 years against all persons, but recognizing the superior title of the United States government and seeking in good faith to acquire that title, may assert such adverse possession as against any person claiming to be the owner under a prior grant. The stronger claim made by the defendants is to the effect *273 that the plaintiff recognized the superior title to the land in the United States government.

3. Plaintiff’s title comes within the rule that adverse possession of real estate for the period prescribed by the statute of limitations vests a perfect title in the possessor as against the former holder of the title and all the world; and he is entitled to all remedies which are incident to possession under written titles: Parker v. Metzger, 12 Or. 407 ( 7 Pac. 518 ); Joy v. Stump, 14 Or. 361 ( 12 Pac. 929 ); Mitchell v. Campbell, 19 Or. 198 ( 24 Pac. 455); Boe v. Arnold, 54 Or. 52 ( 102 Pac 290 , 20 Ann. Cas. 533); Switzler v. Earnheart, 59 Or. 344, 347 ( 117 Pac. 296 ); Stephenson v. Van Blokland, 60 Or. 247, 251, 252 ( 118 Pac. 1026 ).

It follows that the decree of the lower court should be affirmed, and it is so ordered. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Eakin and Mr. Justice Burnett concur.