The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-11-26
AN IMPORTANT DECISION
ON ADVERSE POSSESSION

where there is no such deed, will OF
other writing, transferring the land IL
| DISPUTE it IS incumbent on the de
| PENDANTS to prove that there was al
actual or constructive delivery of the
| property bv' which the adverse claim
| ant got the actual or constructive pos
session of the land from the prior oc-
cupant.
The defendants excepted to the in
/ struction which they claim to have. been
erroneous on the ground that High and
Pratt were Widemann s tenants whose
possession was his possession and that
when he transferred his possession to
Mrs. Macfarlane the continuity of pos
session was never broken for an in
slant between them. McNeely VS..
Langdan, - Ohio st. 80 is cited to
sustain this view in which the court
said: As respects the rights of third
persons against whom the possession is
held adversely it seems to us to be i'm
material, if successive transfers of pos
session were in fact made, whether
such transfers We're effected by will by
deed or by mere agreement either writ
ten or verbal The instruction, it is
claimed, overlooks the right of MAX
ing transfer of the right to possession
by an understanding between Wide
mann ana MIS- Mac1dr1ane.
The plaintiff insists that there is no
evidence upon which delivery of pos
session of the land in dispute can be
l inferred. The Bishop lease, assigned
by Mr.. Widemann to his daughter, de
scribes the leased premises by metes
and bounds. Delivery of the premises
under that lease would not be con
structive delivery of the Okuu land
within the enclosure although not with
in the boundaries of the Bishop land.
The only evidence which has been
pointed out to us or which we have
been able to find in the transcript
which refers to the transfer of posses
sion of the disputed land is Mrs. Mac
farlane s evidence that she acquired it
from her father in 1895. The express
sion that she acquired the premises
from her father is a conclusion of law
rather than statement of fact and
would not have authorized the infer
ence that anything more was intent
ed than that as matter of law she
transfer of the leasehold was a trans
fer of all the land within the fence.
In this meaning of the language used
there was no evidence of delivery of
possession of the disputed strip and no
proof of continuity of its possession
from the time that it was given up
by Widemann s tenants, High and
Pratt That Mrs. Macfarlane s remark
that she acquired the premises from
her father referred to the effect which
she attributed to the assignment to
her of the leasehold and to nothing
else is evident from her testimony that
her father, after 1898, when he called
her attention to Ninia's mistake in
making the fence on the wrong line
q nd tn biS al Of oI1
outside the line, said nothing to her
about the strip. The facts are similar
to those in Ryan VS.. Schwartz, ga Wis.
4O3, In which the court said: ono
presumption can be INDUCED in on this
subject. The defendants wholly fail
ed to show any such transfer of pos
session of the strip in dispute as would
enable them to tack the previous pos
session of Pratt and his heirs, if adj
verse, to their possession, in order to
make out the statutory bar.
Mrs Macfarlane' s possession which
she acquired by the delivery to her of
the assignment of the lease was con-
fined to the leasehold. At the date
of the assignment the statutory limita
ton of actions to recover possession of
land was twenty years and the then
unexpired residue of the term of the
lease was about seven years. If when
Mr.. Widemann assigned the lease he
meant to transfer the Okuu land in
order that its continued possession by
Mrs. Macfarlane for eighteen years
longer to comply with the statute then
in force might secure to her a title
by adverse possession in the Okuu land,
while written evidence of the transfer
was not requisite, it was essential that
he actually should make a transfer AS
this does not appear to have been done
Mrs. Macfarlane IS taking possession of
the land was a separate act of disseisin |!
on her part. Both Widemann and Mrs. |
Macfarlane were in possession without |
right and were strangers to the Okuu |
title. In respect of that title there was !
no privity or succession of relation
by operation of law III. Steel Co. |
VS. Budzisz, 1O6 Wis. 400. The mere
fact that one of them succeeded to the |
other in the possession of this land !
raises no presumption of privity be-
tween them. Lucy VS.. Tenn, ETC., r.
Co., 90 Ala. 246. 8 So SOC.
As we are unable therefore to find
any evidence of actual transfer of the
possession but merely a delivery of the
deed of assignment of the leasehold
accompanied by taking possession of
the land in dispute a verdict, if given
for the defendants, could not have been
sustained. In this view of the case
of the other exceptions is
not required. /
Exceptions overruled
w. F. FREAR,
ALFRED s. HARTWELL,
j. T. DE BOLT
A. G. NJ. Robertson for plaintiff; A.