Wichita Valley Ry. Co. v. Somerville ( 1915 )

On Motion for Rehearing.

In some measure appellee’s criticism of our use of joint possession in the original opinion, is correct, as there, of course, can be but one possession. We might more properly have expressed our meaning by saying “occupancy.” We are well aware of the class of cases in which the question of mixed possession has found expression. This is an anomalous case. The true owner of this land found two occupants on it. One had or claimed title to it, as would appear from the probate records by will, and before ten years had elapsed he acknowledged the title of appellant and leased the land as its tenant. Thereafter the true owner is in possession by tenant. The appellee was in possession, or rather living in the house on another portion of the lot. Why should not the rule of mixed possession apply in this kind of a case? We believe it should. Again, the appellee, under the law, as we conceive it, must have had actual, open, visible, exclusive, distinct, and hostile possession. It must have been such ás would give notice to the owner that its title is disputed. This joint occupancy by the mother and son, especially after the lease by the son, does not by the record, we believe, conclusively show that ap-pellee had such exclusive hostile possession. The fact that the jury may have found such hostile possession was had for five years might be warranted under the facts; for neither mother nor son was occupying the land as the tenant of appellant up to that time. Thereafter the jury may have well concluded appellee did not have actual, exclusive, and hostile possession such as to give notice to appellant of an adverse claim of title to it.

The motion will be overruled.