Capps v. Merrifield , 227 Mich. 194 ( 1924 )

Defendant Merrifield owns land fronting on Washington avenue, in the city of Lansing, and a store building occupying it, 22x110 feet. Plaintiffs have the record title in the regular chain of title of a parcel of land 22x22 feet, lying back of and adjoining said defendant's property. Plaintiffs also own adjoining property, 132 feet in length, fronting on Washington avenue, so these two parcels make an L-shaped piece, with defendant's land lying within the angle. An alley crosses on the back end of both of plaintiffs' parcels. Defendant Loftus is a tenant of Merrifield, occupying the store building. He, like tenants who preceded him, uses, and for 22 years has used, the parcel behind the Merrifield store for storing boxes, merchandise, etc. He has made improvements upon it. He has used it freely in connection with his store business. The parcel was at all times assessed to plaintiffs, and taxes were paid by them. Plaintiffs brought ejectment against both defendants. Mr. Merrifield claims title by adverse possession, and that the possession of the parcel by his tenants, including Mr. Loftus, has inured to his benefit as such claimant. This was the theory and claim of both defendants at the trial and in their requests to charge, and the claim is advanced here. Both sides requested a directed verdict. The case was submitted to a jury, who returned a verdict for plaintiffs, on which judgment was entered. Defendants bring error.

Mr. Merrifield did not acquire this land by adverse possession by himself or his predecessors in title, or any of them. If there is a disseizin at all, it is by the tenants, particularly Mr. Loftus. The land in question was not included in the lease to Mr. Loftus, or to any prior tenant. There is no evidence of any representation by the landlord to any tenant that such land was within the lease. There was no pointing out of boundaries to include the parcel. It is not shown that Mr. Merrifield knew that the tenants were occupying the land in question, nor that he assented to it, beyond the circumstance that such occupancy was persisted in by the tenants and occupants of his building, to some extent at least, for nearly 50 years, and that about 1919 defendants paid for paving the alley. The encroachments to sustain the claim of adverse possession were not the direct acts of the landlord, but of the tenant, or tenants. Assuming that this is a disseizin, does it inure as a matter of law to create a title for the landlord? We think it does not. The subject is one of some difficulty under the authorities. If the tenant possesses land as tenant, his possession inures to the benefit of the landlord. But if he occupies it, not under the lease, but as a trespasser upon the land of a stranger, the trespass is his, and the penalties and compensations, if any, of the trespass are his also. We think of no principle by which the landlord might be held liable for such unauthorized trespass of his tenant, and none by which he may claim benefit because of it.

In Doe v. Leavens, 3 U. C. Q. B. 411, it was held, quoting syllabus:

"Where the landlord places a tenant in possession of Lot No. 1, and the tenant knowingly encroaches on a part of Lot No. 2, to which the agreement as between himself and the landlord gives him no right whatever:

"Held, that the tenant's occupation does not enure to create for the landlord a title to Lot 2." * * *

And from Holmes v. Turner's Falls Co., 150 Mass. 535, 547 (23 N.E. 305, 6 L.R.A. 283):

"If one person disseises another of land, and while in possession leases the land to a tenant, who continues to occupy it under his lease, the adverse possession of the tenant may be tacked to that of the landlord, and the possession of the tenant may be said to be that of the landlord; but if the landlord never had possession of the land, nor claimed title to it, and did not include it in the lease, the possession of the tenant beyond the boundaries of the land contained in the lease is not the possession of the landlord, even although the tenant believes that he is occupying only the land demised.Melvin v. Proprietors of Locks and Canals, 5 Metc. (Mass.) 15 (38 Am. Dec. 384)."

We quote syllabus, West v. Price's Heirs, 2 J. J. Marsh. (Ky.) 381:

"If landlord authorize tenant to enter on certain tract of land, and he enter on other land, such entry does not invest landlord with possession of land, so entered on by tenant, without authority."

It is also said in Bayne v. Brown, 60 Or. 110 (118 P. 282):

"It is true that the possession of the tenant may be the possession of the landlord, but the tenant cannot, without the direction or even the knowledge or consent of the landlord, effect a disseisin in his favor or originate adverse possession."

See, also, Mason v. Wolff, 40 Cal. 246; Bruyea v. Rose, 19 Ont. 433; 2 C. J. p. 74, and cases there cited.

To the contrary is the text of 1 Washburn on Real Property (6th Ed.), § 746, and of 2 Underhill on Landlord and Tenant, § 575, citing interesting early English cases.

As plaintiffs were entitled to a directed verdict as against the defense made, claimed errors in the charge and in argument of counsel are unimportant. Judgment should be affirmed.