This was an action of ejectment. The plaintiff claimed under one
Hall, former owner of the land. The defendants claimed under one
Douglas, who bought it at a tax sale in 1865. The defendants set up
adverse possession in defense. The court instructed the jury that
to defeat the claim of the plaintiff's upon the defense of adverse
possession, the jury must find from the evidence that the
defendants, in person or by their tenants, have for more than
twenty years prior to the 31st day of May, 1889, held actual,
exclusive, continuous, open, notorious and adverse possession of
the said premises, and they cannot extend their possession
Page 168 U. S. 279
by tacking it to the prior possession of any person who, during
such prior possession, did not claim any title or right to the
premises; and, on the request of the defendants, that
"if the jury find from the evidence that William Douglas, the
ancestor of the defendants, bought at a tax sale held by the late
corporation of Washington, so-called, the property in controversy
in this case and paid the price bid for it by him at such sale and
received from the corporation of Washington a deed to said
property, which was by him duly filed for record and recorded in
the land records of the District of Columbia more than twenty years
prior to the commencement of this suit; that thereupon the said
property was assessed to the said William Douglas on the tax books
of the City of Washington, and the taxes thereon from that time
until the beginning of this suit paid by the said William Douglas
or his successors in title, the defendants in this case; that at a
period of time more than twenty years before the commencement of
this suit, the said property was rented on behalf of the defendants
to a person who took the same and held possession thereof as tenant
of the defendants for the purposes of a stone yard, paying rent
therefor from the date of making such arrangements with the
defendants, and that although the said property was not enclosed by
a fence, yet the person so renting the same, either upon the whole
or a part thereof, during his occupancy, deposited stone used by
him in his business, and that such use and possession of said
property was continued by the occupant thereof actually,
exclusively, continuously, openly, notoriously, adversely and
uninterruptedly for a period of twenty years next before the
commencement of this suit, then the jury is instructed that the
defendants are entitled to recover."
Held that the instructions as given were substantially
correct, and there was evidence in the case upon which to found the
one given at defendants' request.
The case is stated in the opinion.
MR. JUSTICE PECKHAM delivered the opinion of the Court.
This is an action of ejectment, brought to recover the
possession of a lot in the City of Washington, designated as "Lot
No. 8 in square No. 941." The defendants set up adverse possession
as defense. Upon the trial before a jury, a verdict was rendered in
favor of the defendants, upon which judgment was entered, and an
appeal taken to the Court of Appeals of
Page 168 U. S. 280
the District of Columbia, where the judgment was in all things
affirmed, 5 D.C.App. 397, and the plaintiff has brought the record
here for review.
It appeared on the trial that the record title to the lot had
been at the time of his death, in one David A. Hall, who died
December 24, 1870, and the heirs at law of Hall, by divers
conveyances, conveyed this lot to the plaintiff in fee. The
plaintiff proved also that the defendants, at the commencement of
this action, were in possession of the premises through one Richard
Rothwell, their tenant, and that they claimed to own the same as
heirs at law of William Douglas, who died in September, 1865. The
defendants, on their part, proved a deed of conveyance to William
Douglas of the lot in question from the corporation of the City of
Washington, the deed reciting a sale of the property for unpaid
taxes assessed on the land in the name of David A. Hall, the deed
being dated July 6, 1865, and recorded July 12, 1865, in the proper
office. The deed was admitted in evidence to show color of title in
the defendants.
The facts upon which the defense of adverse possession arises
have been so well summarized in the opinion of the Court of
Appeals, which was delivered by Mr. Justice Morris, that we take
his statement thereof, as follows:
"It was testified on behalf of the defendants that, sometime in
the latter part of the same year, 1865, one Richard Rothwell, a
stonecutter and builder, who owned and occupied an adjoining lot,
deposited upon the rear of the lot in controversy some pontoons
which he had purchased from the United States, and which he stored
here until he could make some disposition of them, and that he
afterwards used a part of this lot for the deposit of stone and
marble which he used in his business. He testified that he had
deposited three of four wagonloads of marble there as early as the
year 1867, and that some of the pontoons remained on the lot four
or five years. He also testified that in the year 1870 he commenced
to deposit stone there in large quantities, and that in 1872 he
erected a small shed on the lot in which to carry on his work, and
which he replaced with a larger structure in or about the year
1882. "
Page 168 U. S. 281
"Sometime in the year 1867, Mrs. Douglas, the widow of William
Douglas, apparently acting on behalf of his estate or of the estate
of their children, had an interview with Rothwell and came to an
understanding with him, with reference to his continued occupancy
of the lot, in pursuance of which understanding he agreed to pay as
rent to her annually therefor a sum of money equal to the amount of
taxes that should annually be assessed upon it, and he did so pay
rent to her until her death in 1887, and after her death he paid
the rent to her daughter, a Mrs. Wirt, down to about the time of
the institution of this suit. During all this time -- that is, from
1867 to 1889 -- Rothwell continued to occupy the property, and paid
rent therefor to the Douglases, and the latter paid the taxes
annually for all the years from 1868 to 1893, both inclusive,
except for the year 1870, during which there was an interregnum in
consequence of the establishment about that time of a territorial
form of government in the District of Columbia, the assessment of
the property having been in the name of William Douglas since the
year 1868, inclusive."
"By a stipulation filed in the cause since the argument, in
order to supplement some omission in the printed record, it appears
that at the death of William Douglas in 1865, four of his children
were adults and two minors, and that Mrs. Douglas, the widow, was
appointed guardian to the two latter, and filed in her guardianship
accounts for several years the annual receipts for taxes on this
lot, paid by her, and was allowed credit for them by the court. It
therefore appears that, with reference to this lot, she acted not
for herself or on her own individual account, but on behalf of the
estate that was then in her children."
"There was a proposition on the part of Mrs. Douglas, apparently
about the time of Rothwell's attornment to her, to enclose the lot
with a fence. But to this Rothwell objected on the ground that it
would interfere with his use of it, and with free access to it of
his horses and wagons, and the project was abandoned, so that the
lot was never actually enclosed and the only evidence of occupation
consisted in such use of the property as has been indicated. The
streets
Page 168 U. S. 282
had not been actually laid out in that neighborhood otherwise
than by their delineation on the map of the city, and the whole
region was an open field, with no definite landmarks to indicate to
the casual observer the actual location of this lot."
This action was commenced on the 31st of May, 1889, and, as
stated in the brief of the counsel for the plaintiff, the vital
question for the jury was were the defendants in adverse possession
prior to May 31, 1869? The evidence is uncontradicted that from a
period as early as 1867, the defendants, through their tenant,
Rothwell, were in possession of the premises, and such possession
was continued up to the commencement of this action; but it is
claimed that because Rothwell had entered upon the land in 1865
without claiming to own the same or to be entitled to possession,
and had deposited the pontoons and marble mentioned in the
foregoing statement of facts, he thereby became a tenant of the
plaintiff's predecessors in title, and that he could not change the
character of his possession, as being in subordination to them, by
any agreement between himself and Mrs. Douglas, without giving
notice to them that such an agreement had been made.
The doctrine which the plaintiff seeks to set up, we think, is
not applicable to the facts of this case. After the purchase at the
tax sale, the delivery of the deed, and the recording thereof, Mrs.
Douglas, in 1867, claimed title to the land, and demanded
possession thereof from Rothwell, and by reason of the
understanding then arrived at between herself and Rothwell he
became the tenant of Mrs. Douglas as the representative of the
heirs at law of William Douglas, and such tenancy continued up to
the commencement of this action. She went to him under a claim of
ownership and of the right to immediate possession of the lot as
owner. He then acknowledged her right, became her tenant, and paid
rent to her. That certainly placed Mrs. Douglas, as the
representative of the heirs, in possession of the lot. From that
time, the facts are sufficient upon which to base a claim of
adverse possession. We think it was inaugurated when Rothwell,
Page 168 U. S. 283
under his agreement with Mrs. Douglas, acknowledged her right,
and paid her rent, and it was immaterial, so far as the heirs are
concerned, that Rothwell had before that time entered upon the lot,
although under no claim of title, and presumably in subordination
to the title of plaintiff's predecessors.
Harvey v.
Tyler, 2 Wall. 328. If Rothwell were himself
asserting a title by adverse possession, while coming into
possession in acknowledgment of and under the title of the owners,
there might be an opportunity for the application of the doctrine
contended for by plaintiff, and in such case Rothwell could not set
up title by adverse possession while entering in subordination to
the title of the owner, unless he first vacated, and then retook
possession as a hostile entry or did some act necessarily evincing
an intention to put an end to his tenancy. We are not dealing with
Rothwell's rights or title. The defendants did all they were called
upon to do in order to take possession and inaugurate an adverse
holding, when they came with their tax deed, claimed to own the
property described in it, and exercised an act of ownership by
letting the lot to Rothwell as a tenant at a certain rent. When
Rothwell recognized the claim of ownership and remained in
possession from that time in subordination to the rights of Mrs.
Douglas and the heirs at law, their adverse possession, so far as
this point is concerned, was sufficiently inaugurated. Mrs. Douglas
was no party or privy to the prior entry of Rothwell, and
therefore, whatever the circumstances as proven in this case
regarding such prior entry, her rights and those of the heirs
cannot be in any way affected thereby. There is no pretense of any
fraud or concealment in the case by anyone, certainly not by Mrs.
Douglas. Neither she nor the heirs were bound, in order to maintain
their rights, to give any written or verbal notice to the former
owners that they were in possession through Rothwell; nor did the
possession of Rothwell, as tenant of the Douglas heirs, fail to
commence at the time of this agreement because he did not give
notice to the former owners of his recognition of the title and
right to the possession as claimed by Mrs. Douglas.
We are also of the opinion that there was evidence to be
Page 168 U. S. 284
submitted to the jury that the possession of the defendants was
in all other respects adverse, within the meaning of the law upon
the subject, for more than twenty years before the commencement of
this action. There is no doubt that the entry of defendants by
means of the agreement mentioned was under a claim of title on the
part of Mrs. Douglas and those whom she represented as the heirs at
law of William Douglas. There was enough to authorize the jury to
find that the possession was notorious and exclusive, continuous,
actual, open, and adverse.
Ward v. Cochran, 150 U.
S. 597.
Payment of the taxes, as described in the above statement of
facts, is very important and strong evidence of a claim of title,
and the failure of the plaintiff's predecessors to make any claim
to the lot, or to pay the taxes themselves is some evidence of an
abandonment of any right in or claim to the property. In
Ewing v.
Burnett, 11 Pet. 41, it was held by this Court that
the payment of taxes on land for 24 successive years by the party
in possession was powerful evidence of the claim of right to the
whole lot upon which the taxes were paid. The same principle is
held in
Fletcher v. Fuller, 120 U.
S. 534,
120 U. S. 552.
It is some evidence that the possession was under a claim of right,
and was adverse.
Although there was no fence around this lot during the period in
question, yet it was occupied by the tenant for the purposes of his
business -- that of marble and stone cutting -- and although every
foot of the property was not covered by his material, yet it was
placed upon the lot in a convenient manner to be used by him in the
prosecution of his business and in a manner which showed that his
possession was not in connection with any others, but was exclusive
and perfect in himself.
We agree with the court below when, speaking through Mr. Justice
Morris, it says that:
"Short of an actual enclosure, it is not easy to conceive of a
use and occupation more sharply distinctive and adverse than the
conversion of the property into a stone yard, with the stone
practically scattered all over it, according to the testimony of
one or more of the witnesses. Nor should the fact be ignored in
this connection that for
Page 168 U. S. 285
upward of twenty years, the record owners of this property
wholly neglected their duties to the public in regard to it, never
sought to pay the taxes, and permitted the defendants to discharge
the burden which it was incumbent upon themselves to bear, and it
might well be supposed that they had abandoned the property, and
acquiesced in the title which the defendants had acquired."
At the request of the plaintiff, the judge charged the jury
that:
"To defeat the claim of the plaintiffs in this action upon the
defense of adverse possession, the jury must find from the evidence
that the defendants, in person or by their tenants, have for more
than twenty years prior to the 31st day of Mary, 1889, held actual,
exclusive, continuous, open, notorious, and adverse possession of
the said premises, and they cannot extend their possession by
tacking it to the prior possession of any person who, during such
prior possession, did not claim any title or right to the
premises."
Ward v. Cochran, 150 U. S. 597.
This charge contains a statement of all the requisites for
constituting an adverse possession according to the above-cited
case.
And the jury were instructed that the defense of adverse
possession was an affirmative one, and that it was incumbent upon
the defendants to establish it by a clear preponderance of proof,
and, if the proof was equally balanced, they must find for the
plaintiff.
At the request of the defendants, the court gave the following
instructions to the jury:
"If the jury find from the evidence that William Douglas, the
ancestor of the defendants, bought at a tax sale held by the late
corporation of Washington, so-called, the property in controversy
in this case, and paid the price bid by him at such sale, and
received from the corporation of Washington a deed to said
property, which was by him duly filed for record and recorded in
the land records of the District of Columbia more than twenty years
prior to the commencement of this suit; that thereupon the said
property was assessed to the said William Douglas on the tax books
of the City of Washington,
Page 168 U. S. 286
and the taxes thereon from that time until the beginning of this
suit paid by the said William Douglas or his successors in title,
the defendants in this case; that at a period of time more than
twenty years before the commencement of this suit, the said
property was rented in behalf of the defendants to a person who
took the same and held possession thereof as tenant of the
defendants for the purposes of a stoneyard, paying rent therefor
from the date of making such arrangement with the defendants, and
that, although the said property was not enclosed by a fence, yet
the person so renting the same, either upon the whole or a part
thereof, during his occupancy, deposited stone used by him in his
business, and that such use and possession of the said property was
continued by the occupant thereof actually, exclusively,
continuously, openly, notoriously, adversely, and uninterruptedly
for a period of twenty years next before the commencement of this
suit, then the jury is instructed that the defendants are entitled
to recover."
The plaintiff excepted to the granting of such request and to
the charge as given. For the reasons already suggested, we think
the exception not well founded. The charge as given was
substantially correct, and there was evidence in the case upon
which to found it. The first, second, and third requests to charge
made by counsel for plaintiff involve the questions above
discussed, and were properly refused. There are no other questions
of sufficient doubt to render their discussion necessary. We are of
opinion there is no error in the record, and the judgment must
be
Affirmed.