Anderson v. Burnham

The opinion of the court was delivered by JOHNSTON, J.:

This was an action brought by Nelson Burn-ham against Thomas Anderson to recover 160 acres of land in Allen county. To sustain his right of recovery, Burnham showed a patent from the United States to the Missouri, Kansas & Texas Railroad Company, dated November 3,1873, and also a chain of title from the railroad company through several conveyances to himself. The patent and the instruments' of conveyance were duly recorded in the office of the register of deeds. Anderson rests his claim of title upon adverse possession of himself and grantor for more than 15 years prior to the commencement of the áction. Upon the question of adverse possession, the only evidence produced was that offered by Anderson. It showed that Anderson purchased the land from C. O. Starkey in 1881, who then conveyed such interest or title as he had to Anderson by quitclaim deed. In 1866, while it was yet government land, and subject to entry by settlers, Starkey entered upon it with a purpose of procuring a title thereto under the laws of the United States relating to public lands. He then surveyed out the land and placed posts or stakes at each corner of the quarter section, indicating the boundaries and extent of his claim. He broke or plowed a portion of it, which was cultivated and put in crops every year thereafter until the land was sold to Anderson. Hedgerows were broken out, and in 1868 he built a hay barn and corncrib which was a permanent structure and a visible evidence of occupancy. He used that portion of the land not in cultivation as a meadow, cutting and putting up hay thereon each year of his occupancy. He was an unmarried man until 1879, and did not build a residence upon the property until that year, but from the time that he entered upon it until the residence was built, he lived with *459 bis father upon an adjoining farm. At no time was his possession interrupted, and, in the vicinity where it was located, it was known and recognized as Starkey’s claim. He plowed ■entirely around the quarter section 20 12-inch furrows, built a house and stable, planted 300 fruit trees, lariated and herded his stock upon it, and remained in undisputed possession until it was sold and transferred to Anderson, in 1881. Anderson immediately took possession, fenced and cultivated all but 75 ■acres, which was put in pasture, planted an additional orchard, built other buildings, and resided upon the farm continuously until the commencement of the action, which was August 6, 1889. There was no pretense of possession by Burnham, nor by any of his grantors. On the other hand, it is shown that an agent of the railroad company, who was engaged in locating and appraising the lands granted to the company, had notice of Starkey’s possession as well as of the claim which he made to the land. It is clear from what has been stated, that there has been an actual occupancy by Anderson and his grantor, clear, positive, notorious, and continuous, for more than 15 years before the commencement of the action. Did such occupancy constitute adverse possession which ripened into a good title as against the legal owner? Starkey could obtain no right against the United States by reason of his possession, but it appears that the title passed from the government in 1873, and there was a lapse of more than 16 years thereafter before the possession was challenged. During all that time, Anderson and his grantor were claiming and holding in hostility to the rights of the railroad company and those holding under it. It is true that Starkey had no paper title, but this is not essential to adverse possession nor to the acquirement of title by virtue of the statute of limitations-Our statute does not, as do those of some of the states, make color of title an essential element in a title by limitation. (Civil Code, § 16.) In Wood v. Railway Co., 11 Kas. 324 , 348, it is said that, “A mere trespasser without color of right or title, who has been in the actual possession of real estate for 15 years, claim *460 ing title thereto, becomes the owner of the property by virtue of the statute of limitations, if the property has been owned during all that time by some individual or individuals, and not by the United States. Mere possession, therefore, of lands to which the government has parted with its title, for any period, however short, with a claim of ownership, may be said to be an incipient or inchoate title, for such a possession will in time ripen into a complete, perfect and absolute title.”

ll possessionfverse This doctrine was reasserted in Rosa v. Railway Co., 18 Kas. 127 . It is the holding of the notorious and exclusive possession of the land in hostility to the rights of the owner which gives the title, and not any mere instrument or paper under which claim is made. Possession by any adverse occupant, which is actual, continuous, and exclusive, will give-title when the bar of the statute becomes com-píete, although such possession is entirely destitute of color of title. The difference between title acquired by adverse occupancy under color of title and without such color is, that under the former the color of title-gives character to the possession, and gives rise to the presumption that the claimant intends the entry shall be coextensive with the description in the deed, while under the-latter the title will only be coextensive with the actual, visible and continued occupancy. (Gildehaus v. Whiting, 39 Kas.. 711; Boots v. Beck, 109 Ind. 472 .)

*461

2 s' adveSepos-SeSSÍOD.

*460 If the entry upon the land by Starkey was actual, and the-holding of the possession was notorious and exclusive from 1873, when the railroad company acquired the legal title, it would amount to a disseizin, which would give title at the-end of the statutory period. It is immaterial what may have-been his right or claim of right to the land, and what may have been his motive, if he entered upon the land and held a hostile possession as against the owner Of the legal title. (Fitzgerald, v. Brewster, 47 N. W. Rep. 475 .) It is true that Starkey did not reside on the land until 1879, but it is not necessary that a person should reside upon real estate in order that he may be in actual possession of the same. If it is subjected to the dominion of the claimant, manifested in some- *461 appropriate manner, adapted to its character, condition, and locality, by which the party proclaims to the public that he asserts an exclusive control and ownership of the land, a residence upon it is not essential. (Gi lmore v. Norton, 10 Kas. 491 ; Barstow v. Newman, 34 Cal. 91 ; Webber v. Clarke, 74 id. 11.) In the early years of the occupancy of the land by Starkey the country was new, sparsely settled, and not much of it was in actual cultivation, but this land, like that surrounding it, was largely used for hay and grazing purposes. It was not inclosed with a fence, but that is not essential to actual and adverse possession. The use which he made of it was that to which it was adapted, and the improvements which he placed thereon proclaimed to all that he was exercising rights of ownership over the land inconsistent with the right of the real owner. The improvements marked the boundaries of the land, and left no question that he was claiming the entire quarter sec-, tion. His occupancy and use were continuous from year to year, so that he could not be regarded as an occasional trespasser, nor can his possession be regarded as hidden or intermittent. For more than 15 years this possession was maintained, without interference by the holder of the legal title, or any attempt by him to dispute the rightfulness of the possession of Starkey and Anderson. During this long period of occupancy and possession valuable improvements were placed upon the land, but not A ± í y until August, 1889, did the owner challenge the possession or the rightfulness of the claim and possession of the occupant. It was then too late; that possession had ripened into a title.

As the evidence is undisputed, there is no necessity for a retrial of the facts, and therefore the judgment of the court will be reversed, and the cause remanded with the direction to enter judgment in favor of the plaintiff in error.

All the Justices concurring.