Morrison v. Linn , 50 Mont. 396 ( 1915 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

In 1912 this action was brought to have determined the conflicting claims to lot 5, in section 28, township 8 north, range 47 east, in Custer county, Montana. In his complaint plaintiff alleges that for more than ten years prior to the commencement of the action he was in the actual, open, notorious, continuous, exclusive and adverse possession of the land under claim of title thereto. The answering defendant Samuel H. Linn asserts that be and bis codefendant Gertrude Coleman hold the legal title to the land; otherwise the answer is a general denial of the allegations of the complaint. The trial court found that in 1900 plaintiff took possession of the land and erected certain fences, which, with natural barriers, constituted a substantial inclosure of the tract; that since the date of his entry, plaintiff has been in “continuous, open, notorious and - actual, peaceable and exclusive possession of lot 5”; that at the time he went into possession he knew the land was owned by someone else; that he never paid any taxes upon .the property, but all taxes were paid by defendant Linn. The court’s findings further recite: “There is no evidence introduced showing that at the time the plaintiff took possession of said lot 5 he had any claim of title, or made any pretense of having title, to said lot. Under these circumstances, the court is unable to conceive of any theory upon which the plaintiff held possession of said premises under a claim of title exclusive of any other right as provided in section 6438 of the Revised Codes.” In conclusion, the court determined that: “Plaintiff has acquired no right, interest or title in or to the said lot 5 adverse to, or superior to, the title of the said defendant Samuel H. Linn. ’ ’ From a judgment entered in favor of defendant Linn, and from an order denying a motion for a new trial, plaintiff appealed.

In this court the respondent contends that the finding that plaintiff did -not hold possession- of the land under a claim of title is sustained by the evidence. For the purposes of these appeals, the case might have been submitted upon an agreed statement of facts, for there is not any conflict in the testimony upon any matter material to a determination of the controversy. The evidence is undisputed that during the entire time of his occupancy of the land, plaintiff claimed it as his own as against everyone else, that he inclosed it and used it for the only purpose for which it was adapted; that he exercised every act of ownership and exclusive control of the property, and that these facts .were generally known to the people living in the vicinity. He ¡did not pay the taxes upon the land, and his original entry was a trespass. He did not have or claim to have any paper title to the land.

Some incidental questions may be disposed of summarily: One [1, 2] may by adverse possession of land, for the period of the statute of limitations, acquire title thereto. (National Min. Co. v. Powers, 3 Mont. 344.) “Payment of taxes is not an element of adverse possession, unless made so by statutory requirement.” (1 Cyc. 1106.) In the absence of any statute upon the subject in this state, the general rule just stated prevails.

The controversy here is waged about the meaning of “claim of title, as used in section 6438, Revised Codes, and the possibility of a trespasser initiating a right which may ripen into a title by adverse possession. The authorities are quite uniform in holding that, in order to prevail over the record title, it is indispensable that the adverse claimant maintain his possession throughout the entire period of the statute of limitations, under either “color of title” or “claim of title” in himself; otherwise the law will presume his possession to have been subservient to the legal title. This rule prevails in this state by virtue of positive statutes. (Rev. Codes, secs. 6436-6438.)

• Much needless confusion has been introduced into the books by [3] the ill-advised use of “color of title” and “claim of title” as synonymous. Indeed, the confusion is apparent in our own Codes. Section 6436 considers a “claim of title” founded upon a written instrument, or a judgment or decree of court. Since the section is treating of title by adverse possession, and not of •muniments which convey or confirm valid title, it is clear that our legislators fell into the common error and misused the phrase; for one who holds land under a written instrument, a statute or a judgment or decree of court which appears to convey or confirm title, but does not do so in fact, holds under “color of title”; that is to say, he holds by virtue of something which gives him a colorable title only. This is the meaning of the phrase as used by discriminating courts and text-writers. (1 Rul. Case Law, 707.)

In Beverly v. Burke, 9 Ga. 440, 54 Am. Dec. 351, “color of title” is defined as follows: “What is meant by color of title? It may be defined to be a writing, upon its face professing to pass title, but which does not do it, either from a want of title in the person making it, or from the defective conveyance that is used —a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law. ’ ’

In Hall v. Law, 102 U. S. 461, 26 L. Ed. 217, it is said: “Whenever an instrument, by apt words of transfer from grantor to grantee — whether such grantor act under the authority of judicial proceedings or otherwise — in form passes what purports to be the title, it gives color of title.” In the note to Jasperson v. Scharnikow, 15 L. R. A. (n. s.), at page 1218, will be found a long list of decided cases sustaining the correctness of these definitions.

It may be observed, in passing, that “color of title” does not depend upon the validity or effect of the instrument, but entirely upon its intent and meaning. (Hindley v. Manhattan Ry. Co., 185 N. Y. 335, 78 N. E. 276.) It may be in fact altogether invalid or ineffective for the purpose intended, but if it describes the land with sufficient certainty, purports to convey it, and is not void on its face, it gives color of title. (Allen v. Mansfield, 108 Mo. 343, 18 S. W. 901.) Sections 6436 and 6437 treat of adverse possession under color of title, as that phrase should be used.

As distinguished from “color of title,” “claim of title” does [4] not depend upon any writing, statute or judgment or decree of court. As used to characterize adverse possession, “claim of title” means nothing more than the claim asserted by the dis-seisor of his intention to appropriate and use the land in question as his own, to the exclusion of the rights of all persons, and that, too, irrespective of any semblance of color, or right, or title, as the foundation of his claim. (1 Rul. Case Law, 707; Warren v. Bowdran, 156 Mass. 280, 31 N. E. 300; Crowder v. Doe, 162 Ala. 151, 136 Am. St. Rep. 17, 50 South. 230; Carpenter v. Coles, 75 Minn. 9, 77 N. W. 424.) While it is indispensable to defeat the holder of the legal title that the disseisor shall maintain his adverse possession throughout the entire statutory period, under either color of title or claim of title, it is not necessary that his initial entry into possession should be made under any pretense of right or title. From the days of Lord Coke to the present, the rule has been recognized quite generally that the adverse claimant may initiate his claim by a naked trespass. Under section 6438, above, it is difficult to conceive of a ease where the adverse claim could have its initial foundation in anything else than a trespass. In Carpenter v. Coles, above, the trial court instructed the jury that: “A person has not any right, arbitrarily or without any claim of right, knowing that he has no right whatever, to go and take with a high hand wrongful possession of land, and avail himself of the statute of limitations.” Another of like import was given, and concerning them the supreme court said: “The meaning of these instructions is that the statute will never run in favor of a disseisor whose adverse possession originated in a naked and willful trespass; that to set the statute jn motion the entry must have been made under some color or claim of title which the disseisor claimed gave him the legal right to enter. This is clearly incorrect, for the boobs are full of eases where tortious entries upon and possession of land without any pretense of title or rightful claim to the land have ripened into title of adverse possession.” In the note to Jasperson v. Scharnikow, above, 15 L. R. A. (n. s.), at page 1233, the authorities supporting this view will be found assembled at length. There are a few isolated cases to the contrary, but the decided weight of authority sustains the rule announced.

While the adverse claimant under color of title for the statutory period obtains title to the entire tract described in his [5] muni-ment, if it has been subjected to proper use, the one who relies upon claim of title secures only so much as he actually possesses. There cannot be constructive possession under mere claim of title. This is the doctrine of the decided cases and the meaning of our Code, sections 6436, 6437, 6438 and 6439. (1 Cyc. 1122, 1125; 1 Rul. Case Law, 726.).

The trial court erred in failing to find that plaintiff’s possession was adverse, as requested, and likewise erred in determining that his possession was not maintained under claim of title within the meaning of section 6438.

The judgment and order are reversed, and the cause is remanded to the district court, with directions to enter a decree in favor of plaintiff and against the defendant Linn for the relief to which he is entitled.

Reversed and remanded.

Mr. Chief Justice Brantly concurs. Mr. Justice Sanner, being disqualified, did not hear the argument, and takes no part in the foregoing decision.