N. E. Davis, James S. Edwards, and Job Barnard, for defendants in error.
Mr. Justice PECKHAM delivered the opinion of the court.
This is an action of ejectment, brought to recover the possession of a lot in the city of Washington, designated as 'Lot No. 8 in square No. 941.' The defendants set up adverse possession as defense. Upon the trial before a jury a verdict was rendered in favor of the defendants, upon which judgment was entered, and an appeal taken to the court of appeals of [168 U.S. 278, 280] the District of Columbia, where the judgment was in all things affirmed (5 App. D. C. 397), and the plaintiff has brought the record here for review.
It appeared on the trial that the record title to the lot had been, at the time of his death, in one David A. Hall, who died December 24, 1870, and the heirs at law of Hall, by divers conveyances, conveyed this lot to the plaintiff in fee. The plaintiff proved also that the defendants, at the commencement of this action, were in possession of the premises through one Richard Rothwell, their tenant, and that they claimed to own the same as heirs at law of William Douglas, who died in September, 1865. The defendants, on their part, proved a deed of conveyance to William Douglas of the lot in question from the corporation of the city of Washington, the deed reciting a sale of the property for unpaid taxes assessed on the land in the name of David A. Hall, the deed being dated July 6, 1865, and recorded July 12, 1865, in the proper office. The deed was admitted in evidence to show color of title in the defendants.
The facts upon which the defense of adverse possession arises have been so well summarized in the opinion of the court of appeals, which was delivered by Mr. Justice Morris, that we take his statement thereof, as follows:
This action was commenced on the 31st of May, 1889, and, as stated in the brief of the counsel for the plaintiff, the vital question for the jury was, were the defendants in adverse possession prior to May 31, 1869? The evidence is uncontradicted that from a period as early as 1867 the defendants, through their tenant, Rothwell, were in possession of the premises, and such possession was continued up to the commencement of this action; but it is claimed that, because Rothwell had entered upon the land in 1865 without claiming to own the same, or to be entitled to possession, and had deposited the pontoons and marble mentioned in the foregoing statement of facts, he thereby became a tenant of the plaintiff's predecessors in title, and that he could not change the character of his possession, as being in subordination to them, by any agreement between himself and Mrs. Douglas, without giving notice to them that such an agreement had been made.
The doctrine which the plaintiff seeks to set up, we think, is not aplicable to the facts of this case. After the purchase at the tax sale, the delivery of the deed, and the recording thereof, Mrs. Douglas, in 1867, claimed title to the land, and demanded possession thereof from Rothwell, and by reason of the understanding then arrived at between herself and Rothwell he became the tenant of Mrs. Douglas as the representative of the heirs at law of William Douglas, and such tenancy continued up to the commencement of this action. She went to him under a claim of ownership and of the right to immediate possession of the lot as owner. He then acknowledged her right, became her tenant, and paid rent to her. That certainly placed Mrs. Douglas, as the representative of the heirs, in possession of the lot. From that time the facts are sufficient upon which to base a claim of adverse possession. We think it was inaugurated when Rothwell, [168 U.S. 278, 283] under his agreement with Mrs. Douglas, acknowledged her right, and paid her rent; and it was immaterial, so far as the heirs are concerned, that Rothwell had before that time entered upon the lot, although under no claim of title, and presumably in subordination to the title of plaintiff's predecessors. Harvey v. Tyler, 2 Wall. 328. If Rothwell were himself asserting a title by adverse possession, while coming into possession in acknowledgment of and under the title of the owners, there might be an opportunity for the application of the doctrine contended for by plaintiff, and in such case Rothwell could not set up title by adverse possession while entering in subordination to the title of the owner, unless he first vacated, and then retook possession as a hostile entry, or did some act necessarily evincing an intention to put an end to his tenancy. We are not dealing with Rothwell's rights or title. The defendants did all they were called upon to do in order to take possession and inaugurate an adverse holding, when they came with their tax deed, claimed to own the property described in it, and exercised an act of ownership by letting the lot to Rothwell as a tenant at a certain rent. When Rothwell recognized the claim of ownership, and remained in possession from that time in subordination to the rights of Mrs. Douglas and the heirs at law, their adverse possession, so far as this point is concerned, was sufficiently inaugurated. Mrs. Douglas was no party or privy to the prior entry of Rothwell, and therefore, whatever the circumstances as proven in this case regarding such prior entry, her rights and those of the heirs cannot be in any way affected thereby. There is no pretense of any fraud or concealment in the case by any one; certainly not by Mrs. Douglas. Neither she nor the heirs were bound, in order to maintain their rights, to give any written or verbal notice to the former owners that they were in possession through Rothwell; nor did the possession of Rothwell, as tenant of the Douglas heirs, fail to commence at the time of this agreement because he did not give notice to the former owners of his recognition of the title and right to the possession as claimed by Mrs. Douglas.
We are also of the opinion that there was evidence to be [168 U.S. 278, 284] submitted to the jury that the possession of the defendants was in all other respects adverse, within the meaning of the law upon the subject, for more than 20 years before the commencement of this action. There is no doubt that the entry of defendants by means of the agreement mentioned was under a claim of title on the part of Mrs. Douglas and those whom she represented as the heirs at law of William Douglas. There was enough to authorize the jury to find that the possession was notorious and exclusive, continuous, actual, open, and adverse. Ward v. Cocharan, 150 U.S. 597 , 14 Sup. Ct. 230.
Payment of the taxes, as described in the above statement of facts, is very important and strong evidence of a claim of title; and the failure of the plaintiff's predecessors to make any claim to the lot, or to pay the taxes themselves, is some evidence of an abandonment of any right in or claim to the property. In Ewing v. Burnett, 11 Pet. 41, it was held by this court that the payment of taxes on land for 24 successive years by the party in possession was powerful evidence of the claim of right to the whole lot upon which the taxes were paid. The same principle is held in Fletcher v. Fuller, 120 U.S. 534, 552 , 7 S. Sup. Ct. 667. It is some evidence that the possession was under a claim of right, and was adverse.
Although there was no fence around this lot during the period in question, yet it was occupied by the tenant for the purposes of his business,-that of marble and stone cutting; and, although every foot of the property was not covered by his material, yet it was placed upon the lot in a convenient manner to be used by him in the prosecution of his business, and in a manner which showed that his possession was not in connection with any others, but was exclusive and perfect in himself.
We agree with the court below when, speaking through Mr. Justice Morris, it says that: 'Short of an actual inclosure, it is not easy to conceive of a use and occupation more sharply distinctive and adverse than the conversion of the property into a stone yard, with the stone practically scattered all over it, according to the testimony of one or more of the witnesses. Nor should the fact be ignored in this connection that for [168 U.S. 278, 285] upward of 20 years the record owners of this property wholly neglected their duties to the public in regard to it, never sought to pay the taxes, and permitted the defendants to discharge the burden which it was incumbent upon themselves to bear; and it might well be supposed that they had abandoned the property, and acquiesced in the title which the defendants had acquired.'
At the request of the plaintiff, the judge charged the jury that: 'To defeat the claim of the plaintiffs in this action upon the defense of adverse possession, the jury must find from the evidence that the defendants, in person or by their tenants, have for more than twenty years prior to the 31st day of Mary, 1889, held actual, exclusive, continuous, open, notorious, and adverse possession of the said premises; and they cannot extend their possession by tacking it to the prior possession of any person who, during such prior possession, did not claim any title or right to the premises.' Ward v. Cochran, 150 U.S. 597 , 14 Sup. Ct. 230.
This charge contains a statement of all the requisites for constituting an adverse possession according to the above-cited case.
And the jury were instructed that the defense of adverse possession was an affirmative one, and that it was incumbent upon the defendants to establish it by a clear preponderance of proof, and, if the proof was equally balanced, they must find for the plaintiff.
At the request of the defendants, the court gave the following instructions to the jury:
The plaintiff excepted to the granting of such request and to the charge as given. For the reasons already suggested, we think the exception not well founded. The charge, as given, was substantially correct, and there was evidence in the case upon which to found it. The first, second, and third requests to charge made by counsel for plaintiff involve the questions above discussed, and were properly refused. There are no other questions of sufficient doubt to render their discussion necessary. We are of opinion there is no error in the record, and the judgment must be affirmed.