# Lessee of Ewing v. Jacob Burnet

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United States Supreme Court
36 U.S. 41
Lessee of Ewing v. Jacob Burnet
ERROR to the Circuit Court of Ohio. 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 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 11th, 1798, to Samuel Forman; the deed from Symmes to the defendant, for the same lot, was dated May 21st, 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 inclosed 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 inclosure, 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 inclosed 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 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 recognised. 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.
Storer, for the plaintiff in error, contended, that the circuit court had erred, in charging the jury that the evidence adduced by the defendant established an adverse possession of the lot of ground in controversy, for twenty-one years.
2. That a part of the charge was erroneous, in having laid down law as applicable to a suppositional and different case, and in so stating it as that it was applied, by the jury, to the case on trial.
The substance of all the testimony is this: The defendant, Jacob Burnet, claimed to be the owner of the lot, under a deed dated in 1804. He has occasionally driven persons away from the lot, and prevented sand-diggers from carrying off sand. In 1820, he leased the privilege of digging sand. No fence was ever built around the lot, but, on the contrary, the lot was laid open as a common, and was passed over daily by the witnesses. Mr. Burnet has his residence on the opposite side of the street, and his own lot, opposite to this, on which was his dwelling, was fenced in. He has paid taxes on the lot since 1810, and has once or twice brought suit against persons for trespassing on the lot; and has always claimed it as his own. If these facts constitute an adverse possession, then the judgment is right. The evidence being all before the court, in the bill of exceptions, whether they constitute or amount to an adverse possession, is a question of law.
'Adverse possession is a legal idea; admits of a legal definition of legal distinctions; and is, therefore, correctly laid down to be a question of law.' Bradstreet v. Huntington, 5 Pet. 438.
In the absence of proof of any actual possession of the permises in controversy, the law presumes a possession in the person having the legal title; as the plaintiff's lessor shows the elder title in this case, aud the law having attached to that title a constructive possession, the proof of an actual adverse possession in cast upon the defendant. The law raises no presumptions against the elder title; it will not presume that anything has been done; hence, the defendant must show, beyond any reasonable doubt, first, that there has been an adverse possession; second, that adverse possession has continued for at least twenty-one years. 8 Cranch 250; 5 Pet. 355; 3 Wend. 152; 4 Mass. 417; 3 Johns. Cas. 124; 10 Serg. & Rawle 305.
I. There must, then, have been an adverse possession; and here the inquiry will be, what constitutes such a possession, so as to create a bar to the recovery of the true owner? To constitute an ouster of him who was seised, the disseisor must have the actual exclusive occupation of the land, claiming to hold it against him who was seised, or he must actually turn him out of possession. 4 Mass. 418; 1 Ibid. 486. Adverse possession must be marked by definite boundaries, and be regularly continued down, to render it availing. 9 Cow. 654; 10 Johns. 477. The act of limitation does not prevent the entry of the owner of the land, and bringing an ejectment, at any time, unless when there has been an actual, continued, visible, notorious, distinct and hostile possession for twenty-one years. 6 Serg. & Rawle 23. Rights, barred by limitation, are where there is an actual, exclusive, adverse possession; definite, positive and notorious; marked by definite boundaries; an uninterrupted and continued possession for twenty-one years. 3 Serg. & Rawle 294; 1 Har. & Johns. 545; 5 Ibid. 266. The possession that will give a title, under the statute of limitations, must be an actual occupancy, a pedis possessio, definite, positive and notorious. 2 Nott & McCord 343. Digging a canal, and felling trees, are not such acts of possession as may be the basis of the prescription of thirty years. 12 Mart. (La.) 11; 9 Ibid. 123; App'x to Adams on Eject. 493. The occasional exercise of dominion, by broken and unconnected acts of ownership, over property which may be made permanently productive, is in no respect calculated to assert to the world a claim of right; for such conduct bespeaks rather the fitful invasions of a conscious trespasser, than the confident claims of a rightful owner. 2 N. Car. Law Repos. 400. This title by possession, so as to defeat a grant or other legal conveyance, is never to be presumed, but must be actually proved and shown, in order to rebut a prior title, in the same manner and with the same degree of precision, as plaintiff must show a clear title in himself before he can recover. 2 Bay 491. It is a settled rule, that the doctrine of adverse possession is to be taken strictly, and not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner. 9 Johns. 167; 8 Ibid. 228; 5 Pick. 134-5; 3 Johns. Cas. 124; 1 Cow. 285.
Again, there must not only have been an adverse possession, but such possession must have continued during the period of twenty-one years. This possession must not only continue, but it must continue the same in point of locality, during the prescribed period of time, sufficient to constitute it a bar; that is to say, a roving possession, from one part of a tract of land to another, cannot bar the right of entry of the owner upon any part of the land which had not been held adversely for twenty-one years. Hall's Law Journ. 255-6. The possession must have so continued, that at any time an ejectment might have been brought against an occupant on the land, to try the right of entry. 3 A. K. Marsh. 366. If there is any period, during the twenty years, in which the person having the right of entry could not find an occupant on the land, on whom he could bring and sustain his ejectment, that period cannot be counted against him. Braxdale v. Spped, 3 A. K. Marsh. 366; 4 Bibb 257; 1 A. K. Marsh. 106; Smith v. Mitchel, Ibid. 208. An occasional use of the land, either by cutting down and taking away trees, digging or taking away stone or sand, or making sugar once a year, will not amount to an adverse possession. 1 A. K. Marsh. 106. In the case of Smith v. Mitchel, 1 A. K. Marsh. 208, the court determined, that the appellee, having occasionally, for upwards of twenty years, made sugar at a camp erected by him upon the land in contest, did not confer upon him such a possession as would bar the plaintiff's right of entry. 3 J. J. Marsh. 519. Where the junior patentee, in such case, has neither settled upon nor improved the land, the senior patentee, in such case has a right to consider each act of occupation as a mere temporary intrusion. 3 J. J. Marsh. 552.
Applying these cases to the cause before the court, it is believed, that the evidence given by the defendant, on the trial, did not establish an adverse possession, and that the court ought so to have instructed the jury. Taking the whole evidence together, and drawing all the fair legal inferences from it, it is not proved, that the defendant has been in the continued adverse possession of the lot in controversy for twenty-one years. There is nothing more than evidence of occasional acts of ownership over the property. If cutting down trees, making sugar, digging canals, &c., on the land, are not evidence of an actual adverse possession; how can the occasional drawing of a load of sand, or driving people away from the lot, be considered as more convincing evidence of an actual possession?
It is not contended, that, in order to constitute an actual adverse possession, the lot must be inclosed by a fence; on the contrary, it is admitted, that a fence is not actually necessary; it is merely evidence of the fact of occupancy; but it is the actual occupancy itself, connected with the claim of title, that constitutes the bar. Land may be occupied, without a fence; and we know, that in some countries, thousands of acres of land are occupied and tilled although not under fence. In many parts of Europe, at this day, this is the case. But the fact of the land being occupied, and crops annually gathered, shows that an exclusive ownership is claimed by some one; and if it is not the true owner that is so using the land, it becomes him to assert his right in time. So it is willingly admitted, that a lot may be so used and occupied for a period of years, without fencing, as to bar the right owner. For instance, a lot may be used for a coal or lumber yard; the continually keeping such coal or lumber on the lot may as conclusively show an adverse holding, as though a fence was built around it. But because there may be such an adverse occupancy, without fence, it does not follow, that every pretence of ownership, or even a succession of trespasses in digging or permitting others to dig a load of sand on the lot, will constitute an adverse holding. Admit the doctrine to the full extent, as contended for by the defendant, and it leads to this result, that any person may, by trespassing on his neighbor's lot or land, occasionally, in the course of time, become the owner of that land. Apply the same doctrine to wild land, and no man can safely own such property. Vacant lots in town are not usually inclosed, and so long as the public are permitted to pass over them, so long as they lie in common, it appears, that it would be extremely dangerous to admit a title by adverse holding. If a man holding such property will rely upon a mere possession, under a defective title, it is surely not requiring of him too much (where no actual occupancy takes place), in compelling him to erect his fence, thereby giving all the world to know to that he claims, to the exclusion of all other owners. The decision made by this court, in Ellicott v. Pearl, 10 Pet. 414, since the trial of this cause, has been examined; the court are not asked to interfere with that decision; nothing is found therein opposed to the present case. It is not contended, that an occupany of land can only be proved by the erection of a fence, or actual residence, or actual possession must be proved, without either fence or actual residence; and these are the positions decided in the case alluded to. That case does not, therefore, affect the present controversy.
II. As to the second point, that the charge of the court was incorrect, in stating the law of a case different from that submitted to the jury, the judge said:-'If the defendant paid the taxes for the lot ejected, and prosecuted trespassers on the lot, it being situated adjoining to the lot on which the defendant actually resided, except the intervention of a street, which had not been graded and opened so as to be useful to the public; and said lot preserved the view of the defendant from his residence unobstructed, and such possession was continued the time, &c., it would constitute an adverse possession.' This appears calculated to convey the impression to the jury, that the mere design on the part of the occupant of a house, on an adjoining lot, not in dispute, to preserve an unbroken view to his residence, may be considered as tending to establish an adverse possession of the lot in dispute. Surely, such a position cannot be sustained, upon any sound principle of law. If once admitted, it would place all vacant town lots in the utmost jeopardy. Nothing is more common in towns, particularly of modern origin, than to have a house surrounded with vacant lots; and if an actual occupation, or an inclosure, can be dispensed with, merely on the ground that the claimant intended to preserve the view to a house on an adjoining lot, or a lot on the opposite side of the street; it is tantamount to establishing the proposition, that neither actual occupancy, nor an inclosure, is necessary to constitute an adverse possession of a city lot. The charge of the court, therefore, was entirely incorrect; and must have had an influence with the jury unfavorable to the plaintiff's rights.
Ewing, for the defendant.-The point presented by the counsel for the plaintiff in error, that the establishment of a subsequent title derived from the same source as the prior title, cannot affect the prior title, was not presented in the circuit court; and it cannot, therefore, be made a part of the case in this court. The whole question on the trial of the cause was the effect of the adverse possession asserted by the defendant, resting it on the statute of limitations of Ohio, upon the title of the plaintiff by deed, admitted to be prior in date to the deed under which the defendant also claimed.
Under the statute of limitations of Ohio, and under the general law, the circuit court had no right to exclude from the jury the evidence of possession. Some of the witnesses expressly say, that the defendant had possession of the lot for upwards of twenty years; and thus the court had no right to weight the evidence. It was not the duty of the court, to say the evidence did not make out the case. It is true, title by possession is a legal title; but facts must be proved to make it out. The court was bound to state what facts would make out such a title, and they did so.
Did the court lay down the law correctly in favor of the plaintiff and the defendant, in the charge to the jury? All the statements of the law are right, and the plaintiff has, therefore, no right to complain. It is said, there cannot be two constructive possessions of the same property. This may be true; but the defendant does not claim a constructive possession, but an actual possession; and an ejectment might always have been brought against him by the plaintiff's lessee.
Storer, in reply, insisted, that asking a court to charge the jury whether the whole evidence was sufficient to establish an adverse possession, and asking instructions of the court on the whole evidence, are the same as a demurrer to evidence.
Ewing v. Burnet, 1 McLean 266, affirmed.
BALDWIN, Justice, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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