Lessee of Ewing v. Burnet,
36 U.S. 41 (1837)

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U.S. Supreme Court

Lessee of Ewing v. Burnet, 36 U.S. 11 Pet. 41 41 (1837)

Lessee of Ewing v. Burnet

36 U.S. (11 Pet.) 41


Ejectment. Ohio. It is the exclusive province of the jury to decide what facts are proved by competent evidence. It is its province to judge of the weight of testimony as tending, in a greater or less degree, to prove the facts relied upon.

An elder legal title to a lot of ground gives a right of possession, as well as the legal seizure and possession thereof, coextensive with the right, which continues until there shall be an ouster by actual adverse possession or the right of possession becomes in some other way barred.

An entry by one on the land of another is or is not an ouster of the legal possession arising from the title according to the intention with which it is done. If made under claim or color of right, it is an ouster; otherwise it is a mere trespass. In legal language, the intention guides the entry, and fixes its character.

It is well settled that to constitute an adverse possession, there need not be a fence, a building, or other improvement made; it suffices for this purpose that visible notorious acts are exercised over the premises in controversy for twenty-one years after an entry under a claim and color of title.

Where acts of ownership have been done upon land which from their nature indicate a notorious claim of property in it, and are continued for twenty-one years with the knowledge of an adverse claimant without interruption or an adverse entry by him for twenty-one years, such acts are evidence of an ouster of the former owner and of an actual adverse possession against him if the jury shall think that the property was not susceptible of a more strict and definite possession than had been so taken and held. Neither actual occupation or cultivation is necessary to constitute actual possession when the property is so situated as not to admit of any permanent useful improvement and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and could not exercise over property which he did not claim.

Punctuation is a most fallible standard by which to interpret a writing; it may be resorted to when all other means fail, but the court will first take the instrument by its four corners in order to ascertain its true meaning. If that is apparent on judicially inspecting it, the punctuation will not be suffered to change it.

An adverse possession far twenty-one years under claim or color of title merely void is a bar to a recovery under an elder title by deed, although the adverse holder may have had notice of the deed.

The plaintiff in error instituted an action of ejectment in the Circuit Court of Ohio at December term, 1834, against the defendant to recover a lot of ground in the City of Cincinnati. Both the plaintiff and the defendant claimed title under deeds from John Cleves

Page 36 U. S. 42

Symmes, the original grantee of the United States, for all the land on which the City of Cincinnati is erected. The deed from Symmes, under which the plaintiff asserted his title, was executed June 11, 1798, to Samuel Forman; the deed from Symmes to the defendant for the same lot was dated May 21, 1803. An adverse possession for twenty-one years and upwards was relied on as constituting a sufficient legal title under the statute of limitations of Ohio. The case and the evidence are fully stated in the opinion of the Court.

The cause was tried at July term 1835, and a verdict, under the instructions of the court, was found for the defendant, on which a judgment was rendered. The plaintiff tendered a bill of exceptions.

The charge of the court was as follows:

"The plaintiff having shown a deed for the premises in controversy older in date than that which was given in evidence by the defendant, on the prayer of the defendant, the court instructed the jury that his actual possession of the lot, to protect his title, under the statute of limitations, must have been twenty-one years before the commencement of this suit. That suing for trespass on the lot, paying the taxes, and speaking publicly of his claim were not sufficient to constitute an adverse possession. That any possession short of an exclusive appropriation of the property by an actual occupancy of it so as to give notice to the public and all concerned that he not only claimed the lot, but enjoyed the profits arising out of it, was such an adverse possession as the statute requires. That to constitute an adverse possession, it is not essential that the property should be enclosed by a fence, or have a dwelling house upon it. If it were so situated as to admit of cultivation as a garden or for any other purpose without an enclosure, and it was so cultivated by the defendant during the above period, it would be sufficient, or if the lot contained a coal mine or marble or stone quarry and it was worked the above period by the defendant, he having entered under a deed for the whole lot, such an occupancy would be an adverse possession, though the lot had no dwelling house upon it and was not enclosed by a fence. And also if the lot contained a valuable sand bank which was exclusively possessed and used by the defendant for his own benefit by using the sand himself and selling it to others, and his occupancy of the lot in this manner was notorious to the public and all concerned, and if the defendant paid the taxes for the same, ejected and prosecuted trespasses on the lot, it being

Page 36 U. S. 43

situated adjoining to the lots on which the defendant actually resided, except the intervention of a street which had not been graduated and opened so as to be used by she public, and said lot preserved the view of the defendant from his residence unobstructed, and such possession was continued the time required by the statute, it would constitute an adverse possession for the whole lot, the defendant having entered under a deed as aforesaid. The court also said to the jury the law had been settled in Kentucky that if a person residing on a tract of land should purchase by deed another tract adjoining to it, his possession would be extended over the tract thus purchased, and that this seemed to be reasonable and was sustained by the doctrine of possession as generally recognized. That had the lot in controversy adjoined the premises on which the defendant resided, the case would come within the rule, but that a street intervened between the residence of the defendant and the lot in controversy, which would prevent an application of the rule. "

Page 36 U. S. 49

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