Lessee of James H. Ewing, plaintiff in error v. Jacob Burnet, 11 Pet. 41

Mr. Justice Baldwin delivered the opinion-of the Court.

In the court below, this was an action of ejectment, brought in November, 1834, by the lessor of the plaintiff, to recover possession of lot No. 209, in the city of Cincinnati; the legal title to which is admitted to have been in John Cleves Symmes, under whom both parties claimed: the plaintiff, by a deed dated 11th of June, 1798, to Samuel Foreman, who, on the next day, conveyed to Samuel Williams, whose right, after his death, became vested in the plaintiff: the defendant claimed by a deed to himself, dated 21st of May, 1803, and an adverse possession of twenty-one years before the bringing of the suit.

It was in evidence tliat the lot in controversy is situated on the corner of Third and Vine streets; fronting on the former one hundred. and ninety-eight, on the latter ninety-eight feet; the part on Third street is level for a short distance, but descends towards the south along a steep bank, from forty to fifty feet, to its south line; the side of it was washed in gullies, over and around which the people of the place passed and-repassed at pleasure.

The bed of the lot was principally sand and gravel, with but little loam or soil; the lot was not fenced, nor had any building or improvement been erected or made upon it, until within a few years before suit brought; a fence could have been kept up on the level ground on the top of the hill on Third street, but not on its declivity, on account of the deep gullies washed in the bank; and its principal use and value was in the conveniénce of digging sand and gravel for the. inhabitants.

Third street separated this lot. from the one on which the defendant resided from 1804, for many years, his mansion fronting on that street; he paid the taxes upon this lot from 1810, until 1834, inclusive; and from the date of the deed from Symmes, until the trial, claimed it as his own.

During this time, he also claimed the exclusive right of digging and removing sand and gravel from the lot; giving permission to some, refusing it to others; he brought actions of trespass against.those who had done it, and at different times made leases to different persons, fothe purpose of taking sand and gravel therefrom, besides taking it for his own use, as he pleased.

This had been done by others without his permission, but there was no evidence of his acquiescence in the claim of any person to take or remove the sand or gravel, or that he had ever intermitted his claim to the exclusive right of doing so; on the contrary, several witnesses testified to his continued assertion of right to the lot; their knowledge of his exclusive claim, and their ignorance of any adverse claim for more than twenty-one years before the present suit was brought.

They further stated, as their conclusion from these facts, that the defendant had, from 1806, or 7, in the words of one witness, “ had possession of the lot;” of another, that since 1804, “ he was as perfectly and exclusively in possession, as any person could possibly be of a lot not built on or enclosed;” and of a third, “that since 1811, he had always been in the most rigid possession, of the lot in dispute; a similar possession toother possessions on the hill lot.” It was further in evidence, that Samuel Williams, under whom the plaintiff claimed; lived in Cincinnati, from 1803, till his death in 1824; was-informed of defendant having obtained a deed from Symmes, in 1803, soon after it was obtained, and knew of his claim to the lot; but there was no evidence that he ever made an entry upon it, demanded possession, or exercised or assumed any exercise of ownership over it; though he declared to one witness, produced by plaintiff, that the lot was his, and he intended to claim and improve it when he was able.

This declaration was repeated often-; from 1803, till the fime of his death, and on his death-bed; and it appeared that he was, during all this time, very poor'; it also appeared in evidence, by the plaintiff’s witness, that the defendant was informed that Williams owned the lot before the deed from Symmes, in 1803, and after he had made the pur-chase.

This, is .the substance of the evidence given at the trial, and returned with the record and a bill of exceptions, stating that it contains all the evidence offered in the cause: whereupon the plaintiff’s counsel moved the court to instruct the jury that on this evidence the plaintiff was entitled to a verdict; also that the evidence offered by the plaintiff and defendant, was not sufficient, in law, to establish an adverse possession by the defendant: which motions the court overruled. This forms the first ground of exception by the plaintiff to the overruling his motions: 1.

The refusal of the court to instruct the jury that he was entitled to recover: 2. That the defendant had made out ah adverse possession. Before the court could have granted the first motion, they must have been satisfied that there was nothing in evidence, or any fact which the jury could lawfully infer therefrom, which could in any way prevent the plaintiff’s recovery; if there was any evidence which conduced to prove any fact that could produce such effect, the court must assume such fact to have been proved; for it is the exclusive province of the jury to decide what facts are proved by competent, evidence.

It was also their province to judge of the credibility of the witnesses, and the weight of their testimony, as tending, in a greater or less degree, to prove the facts relied on: as these were matters with which the court could not interfere, the plaintiff’s right to'the instruction asked, must depend upon the opinion of the court, on a finding by the; jury in favour of the defendant, oh every matter which the evidence conduced to prove; giving full credence to the witnesses produced by him, and discrediting the witpess for the plaintiff.

Now as the jury might have-refused credence to the only -Witness who testified to the notice given to" the defendant of Williams’ ownership” of the lot in 1803, and of his subsequent assertion of "claim, and intention to improve it; the testimony of this witness must be thrown out of the case, in testing the correctness of the court in overruling this motion; otherwise we should hold the court below to have erred, in not instructing the jury on a matter exclusively for their consideration; the credibility of a witness, or how far his evidence tended to prove a fact, if they deemed him credible.

This view of the case, throws the plaintiff 'back to his deed, .as the only evidence of title; on the legal effect of which, the court were bound to instruct the jury as matter of law, which is the.only question to be considered on this exception. It is clear, that the plaintiff had the elder legal title to the lot in dispute, and that it gave him a right of possession, as well as the legal seisin and possession thereof, co-extensively with his right; which continued till he was ousted by an actual adverse possession; 6 Pet. 743; or his right of possession had been in some.other way barred.

It cannot be doubted, that from the evidence adduced by the defendant, it was competent for the jury to infer these facts; that" he had claimed this lot under colour and claim of title, from 1804, till 1834; had exercised acts of ownership on, and over it, during this whole period; that his claim was known to Williams and to the plaintiff; was visible; of "public notoriety for twenty years previous to the death of Williams.

And if the jury did not credit the plaintiff’s witness, they might also find that the defendant had no actual notice of "Williams’ claim; that it was unknown to the inhabitants of the place, while that of. the defendants was known; and that Williams never did claim the lot, or assert a right to it from 1803, till his death in 1824.

The jury might also draw the same conclusion from these facts; as-the witnesses did; that the defendant was during the whole time in possession of the lot, as strictly, perfectly, and exclusively, as any person could be of a lot not enclosed or built upon; or as the situation of the lot would admit of.

The plahitiff must therefore rely On a deed of which he had given no notice, and in opposition to all the evidence of the defendant, and every fact which a jury could find, that would show a right of possession in him, either by the presumption of a release or conveyance of the elder legal title, or by an adverse possession.

On the evidence in the cause the jury might have presumed a release, a conveyance, or abandonment of the claim or right of Williams, under a deed in virtue of which he had made no assertion of right from 1798, in favour of a possession, such as the defendant held from 1804; though it may not have been strictly such an adverse possession, as would have been a legal bar under the act of limitations.

There may be circumstances which would justify such a presumption in less than twenty-one years: 6 Pet. 513: and we think that the evidence in this case was in law sufficient to authorize the jury to have made the presumption to protect a possession of the nature testified for thirty years; and if the jury could so presume, there is no error in overruling the first motion of the plaintiff.

On' the next motion, the only question presented is on the' legal sufficiency of the evidence to make out an duster of the legal seisin and possession of Williams by the defendant; and a continued adverse possession for twenty-one years before suit brought. An entry by one man on the land of another,, is an ouster of the legal possession arising from the title, or not; according to the intention with which itds done: if made under claim and colour of right, it is an ouster; otherwise it is a mere trespass, in legal language .the intention guides the entry, and fixes its character.

That the evidence in this case justified. the jury in finding an entry by the defendant on this,lot, as early as 1804, cannot be doubted; nor that he claimed the exclusive right do .it under colour of title, from that time till suit brought. There was abundant evidence of the intention with which the first entry was made, as well as of the subsequent acts related by the witnesses, to justify a finding that they were in assertion of a right in himself; so that the only inquiry is, as to the nature of the possession kept up.

It is w;cll settled that to constitute an adverse possession, there neéd not be a fence, building, or other improvement made: 10 Pet. 442: it suffices for this purpose, that visible and notorious acts of ownership are exercised over the premises in controversy, for twenty-one years, after an entry under claim and colour of title. So much depends on the nature and situation of the property, the uses to which it can be applied, or to which the owner or claimant may .choose to apply it; that it is difficult to lay down any precise rule adapted to all cases.

But it may with safety be said, that where acts of ownership have been done upon land, which, from their nature indicate a notorious claim of property in it, and are continued for twenty-one years, with the knowledge of an adverse claimant without interruption, or an adverse entry by him, for twenty-one years; such acts are evidence of an ouster of a former owner, and an actual adverse possession against him: if the jury shall think, that the property was not susceptible of a more strict, or definite possession than had been so taken, and held.

Neither actual occupation, cultivation, or residence, are necessary to constitute actual possession; 6 Pet. 513; when the. property is so situated as not to admit of any permanent useful improvement: and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own i-ight, and would not exercise over property which he did not claim.

Whether this, was the situation of the lot in question, or such was the nature of the acts done, was the peculiar province of the jury; the evidence in our opinion was legally sufficient to draw the inference that such were the facts of the case; and if found specially, would have entitled the defendant to the judgment of the court in his favohr; they, of course, did not err in refusing to instruct the jury that the evidence was not sufficient to make out an adverse possession. The remaining exceptions are to the charge of the court, in which we can perceive no departure from established principles.

The learned judge Was very explicit in stating the requisités of an adverse possession; the plaintiff had no cause of complaint of a charge, stating that exclusive appropriation by an actual occupancy; notice to the public, and all concerned of the claim, and enjoyment of profits by defendant, were all necessary. No adjudication of this court has established stricter rules than these: and if any doubts could arise, as to their entire correctness, it would be on an exception by the defendant.

In applying them in the subsequent part of the charge, to the evidence, there seems to have been no relaxation.of these rules. The case put by the court, as one of adverse possession, is of a valuable sand bank exclusively .possessed, and used by the defendant, for his Own benefit, by using and selling the sand; and this occupancy’, notorious to the public and all concerned; which fully meets all the requisites before stated, to constitute adverse possession.

If we take the residue of the charge literally, it would seem to superadd other requisites; as the payment of taxes, ejecting and prosecuting trespassers on/the lot; its contiguity to the defendant’s residence, &c.; but such is not the fair construction of the charge, or the apparent meaning of the court.

These circumstances would seem to have been alluded to, to show the intention with which the acts previously referred to were done; in which view they were important, especially, the uninterrupted payment of taxes on the lot for twentyfeiur successive years; which is powerful evidence of a claim of right to the whole lot.' The plaintiff’s counsel has considered these circumstances as making a distinct-case in the opinion of the court, for the operation of the statute; and has referred to the punctuation of the sentence, in support of this view of the charge.

Its obvious meaning is, however, to state these as matters additional or cumulative to the preceding facts; not as another distinct case made out by the evidence, on which alone the jury could find an adverse possession. Punctuation is a most fallible standard by which to interpret a writing; it may be resorted to when all other means fail; but the Court will first take the instrument by its four corners, in order to ascertain j^s true meaning: if that is apparent on judicially inspecting the whole, the punctuation will not be suffered to change it.

It has also been urged, in argument, that as the defendant had notice of the claim of Williams, his possession was not fair and honest, and so not protected by the statute. This admits of two answers: 1. The jury were authorized to negative any notice; 2. Though there was such notice of a prior deed, as would make a subsequent one inoperative to pass any title, yet an adverse 'possession for twenty-one years, under claim and colour of title, merely void, is a bar; the statutory protection being necessary, only where the defendant has no other title but possession, during the period prescribed.

The judgment of the circuit court, is therefore affirmed.