Holtzman v. Douglas

5 App. D.C. 397, 1895 U.S. App. LEXIS 3560

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 4, 1895
• Docket: No. 385
• Status: Published

Opinion

Mr. Justice Morris

delivered the opinion of the Court:

1. The first error assigned by the appellant is based upon a question propounded on the part of the appellees to their tenant, Richard Rothwell, who was called as a witness on their behalf. The question propounded was this: “Was this lot ever known in the neighborhood by any other name than the Douglas lot?” And the answer of the witness to it was, “ No.” Objection was interposed to the question, on the ground that it was both irrelevant and leading — irrelevant, because it was not competent to show that the lot was known by any particular name.

Plainly, the question was leading, and for that reason properly subject to objection. It not only suggested the desired answer, but almost of necessity precluded any other answer; and it is an elementary rule of practice that a party should not be permitted to put leading questions to his own witness at the trial. But this is a rule that is subject to great modification; and it is always a matter more or less under the control and discretion of the trial court. That there are many circumstances under which a trial court will properly permit leading questions to be put by a party to his own witness, must, of course, be conceded; for the exceptions to the rule are as elementary as the rule itself. And we are not advised that a judgment has ever been reversed in any case on the sole ground that a question propounded by a party to his own witness, otherwise pertinent and proper, was of the nature of a leading question. The authorities seem to hold generally that the whole subject is within the discretion of the trial court, and that the mere allowance of a leading question should not be held in an appellate tribunal as reversible error. York v. Pease, 2 Gray, 282; Commonwealth v. Thrasher, 11 Gray, 57; Green v. Gould, 3 Allen, 465; Shufflin v. People, 4 Hun, 16; Regina v. Murphy, 8 Carrington & Paine, 297. And this seems to be consonant with reason and sound principle; inasmuch as otherwise appeals might be greatly multiplied for mere matters of form, to the detriment of the due administration of justice.

But it is argued that this question, to the allowance of which exception has been taken, was not only leading, but also incompetent and irrelevant, and the case of Ellicott v. Pearl, 10 Pet. 412, is cited in support of the position.

We cannot regard that case as applicable here. The question to which objection was made in that case and which was excluded and held to have been properly excluded, was as to what some surveyor, or person engaged with a surveyor, had on some occasion stated as to the place of the location of certain boundary lines. It was held that the boundary lines of a patent could not properly be established by hearsay testimony of that kind. But the issue in the case before us is very different. It involved the notoriety of the possession by the appellees of the lot in dispute; and certainly it was competent to prove that notoriety by testimony, as to the persons whom all the people in the neighborhood understood to be in the possession of the property. For the question is not as to whether the lot bore a specific name, but as to who were supposed to be the owners of it. That is the plain import of the question; and while it seems that the form of the question is a proper subject of criticism, it does not appear to us to be otherwise improper or irrelevant.

2. As already stated, the plaintiff submitted five prayers for instructions to the jury, two of which were granted and three refused. Those which were refused were as follows:

“1. The jury are instructed, that on the issues of adverse-possession for the period of twenty years before suit brought the verdict must be for the plaintiff.

“ 2. If the jury find from the evidence that the witness Bothwell first became tenant to the defendants in 1867, by oral agreement to pay to them as annual rent the amount of taxes to be assessed thereon; and further find that after making such agreement he did not fence or otherwise enclose said premises or place material thereon prior to the year 1870, otherwise than by retaining upon it pontoons and stones placed there before he had any relations with the defendants, and when he claimed no right or title in said premises, then they are instructed that RothwelFs holding before such year 1870 is not to be regarded as an actual and visible possession adverse to the plaintiff, and cannot defeat this action.

“ 3. The jury are instructed that, in the absence of an adversary possession, the possession is presumed in law to be in the person holding the title to the land, and one who enters upon and occupies the land of another claiming no right or title thereto may be considered the tenant at will of the true owner, and he will remain such tenant and his holding will not be adverse until something happens which notifies the true owner that he ceases to hold as his tenant and holds adversely. Applying this rule to the case on trial, if the jury shall find from the evidence that more than twenty years before suit brought the witness Roth-well, claiming no title or right in the lot of land in question, entered thereon and deposited on the rear part thereof certain building materials, such entry must be taken to have been in subordination to the title of the true owner, and Rothwell must be considered to have been the tenant at will of such owner; and to change such tenancy into an adverse holding it was not enough that Rothwell attorned to Mrs. Douglas, and after such attornment suffered his materials aforesaid only to remain upon said lot as they were before such attornment, but he must have done some act on the land calculated to notify the true owner that he had ceased to hold as tenant to him and claimed in some other right.”

The two instructions that were given at the request of the plaintiff were these:

“4. To defeat the claim of the plaintiff 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 of May, 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.

“ 5. The jury are instructed that the defense of adverse possession is an affirmative defense, and that it is incumbent upon the defendants to establish such adverse possession by a clear preponderance of proof, and therefore, if the proof is equally balanced, they must find for the plaintiff.”

That the rule of law as to adverse possession was correctly laid down in these two instructions that were granted, and stated as favorably to the plaintiff as he could desire, cannot be doubted. They are in precise accord with the latest utterance of the Supreme Court of the United States on the subject in the case of Ward v. Cochran, 150 U. S. 597, and with all the best authorities. But the substance of the appellant’s argument is, that there was no sufficient evidence to be submitted to the jury; and that therefore the other instructions which were requested, the practical effect of which would have been to take the case from the jury, should have been granted. It is urged that there is no evidence of any acts of adverse possession by the defendants prior to the year 1870; and it must be conceded that, if this were the case, the plaintiff would have been entitled to the peremptory instruction which he sought.

The vice of the second and third instructions requested by the plaintiff lies in the fact that they seek to bind the defendants by the acts and claims of Both well, and not by their own acts and claims. If Bothwell had been the defendant in the suit and the claimant of the land for himself, the circumstances under which he first entered and his disclaimer of any claim of right or title in himself might be important as between him and the plaintiff. But his motives and purposes, and his actions in the premises, cannot reasonably be held to bind the defendants, except in so far as those actions are his actions as their tenant. If he had been put in possession for the first time by Mrs. Douglas, when she appears first to have entered upon the premises in 1867, it could not with any show of reason be claimed that his occupation from that time should not be regarded as adverse to the title of the plaintiff. Now, what difference could it make either to the rights of the appellant or to those of the appellee, that, at some time or for some previous period of time, this same Rothwell or anyone else had also been an occupant of the land, and a trespasser upon it, so far as the title of the appellant was concerned? Certainly, because there has been one trespasser upon land, who perhaps did not intend to gain title to it by adverse possession, it does not follow that a subsequent occupant may not gain such title. It will scarcely be contended that, if the defendants had themselves entered in person in 1867, purchased the business and the material of Rothwell upon the premises, and continued that business precisely in the manner in which he continued to conduct it, they might not properly make that entry the basis of a claim of title by adverse possession. And if they could do so by entry in person, why might they not do it by the entry of a tenant for them ? And if they could do it by a tenant, of what consequence would it be whether the tenant had ever had any connection with the land before. The possession thereafter, in contemplation of law, is not the possession of the tenant, but that of the person or persons under whom the tenant holds.

The theory that Rothwell, having occupied the land before 1867, without any claim of title must be regarded as having held in subserviency to the title of the plaintiff as the true owner; and that thereafter no adverse title could accrue without notice of some kind to the true owner, is untenable, or at all events not applicable to the present case. Undoubtedly, one who has entered upon land as a tenant, or by the permission or grace of the owner of the land, cannot be allowed to disclaim the character of that entry and to hold adversely, until he does something whereby to notify the true owner of his changed relation to him. But an entry adverse in itself, and without the knowledge or consent, either express or implied, of the true owner, and continued occupation under such adverse entry, do not require the additional element of express intention on the part of the person who enters to form the basis of title by adverse possession. But whatever might have been the case with regard to the tenant Rothwell, we fail to see how the secret thoughts and purposes that may have actuated him in his original entry could be regarded as affecting the rights of the defendants in this case. His disclaimer of right might be held as a disclaimer with reference to the claim of title of the defendants with as much plausibility as it could be held to operate in favor of the title now held by the plaintiff.

There was, however, it is argued, no actual inclosure of the land by the defendants or their tenant such as to put the appellant upon notice of the adverse occupation; and numerous cases are cited by the appellant to show.what acts of use or occupation of property would be insufficient as a basis for a claim of title by adverse possession. But we fail to see how these cases are applicable. It' is well settled law that, for the purposes of a title by adverse possession, actual inclosure is not necessary, and that any occupation of the property, visible and notorious, of which the property is susceptible, and which excludes the true owner from it, is sufficient. Ellicott v. Pearl, 10 Pet. 412; Ewing v. Burnet, 11 Pet. 41. And, 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 upwards of twenty 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. In the case of Ewing v. Burnet, 11 Pet. 41, 54, the Supreme Court of the United States said that “ the uninterrupted payment of taxes on the lot for twenty-four successive years (by the party in possession) was powerful evidence of a claim of right to the whole lot.” And we are disposed to hold, in accordance with that view, that there was ample evidence in this case to go to the jury to show the claim of the defendants, and the nature and extent of it from the year 1867.

3. An assignment of error is also based upon an instruction given by the court to the jury on behalf of the appellees, which was as follows :

“ If the jury find from the evidence that William Douglas, the ancestor of the defendants, bought at a tax sale held by the late corporation of Washington, so called, the property in controversy in this case and paid the price bid for it by him at such sale and received from said corporation of Washington a deed to said property, which was by him duly filed for record and recorded in the land records of the District of Columbia more than twenty years prior to the commencement of this suit; that thereupon the said property was assessed to the said William Douglas on the tax books of the City of Washington, and the taxes thereon from that time until the beginning of this suit paid by the said William Douglas or his successors in title, the defendants in this case; that at a period of time more than twenty years before the commencement of this suit the said property was rented on behalf of the defendants to a person who took the same and held possession thereof as tenant of the defendants for the purposes of a stone yard, paying rent therefor from the date of making such arrangement with the defendants; and that, although the said property was not enclosed by a fence, yet the person so renting the same, either upon the whole or a part thereof, during his occupancy, deposited stone used by him in his business, and that such use and possession of said property was continued by the occupant thereof actually, exclusively, continuously, openly, notoriously, adversely, and uninterruptedly for a period of twenty years next before the commencement of this suit, then the jury is instructed that the defendants are entitled to recover.”

It is argued on behalf of the appellant that there was no evidence of the facts assumed in this instruction; that there ■was no evidence to show that Roth well had taken possession of the property for the purposes of a stone yard, or that, after his attornment to Mrs. Douglas, he had placed any stone upon the lot prior to 1870. But this contention resolves itself into a dispute about words. Both in law and in fact it; must be held that the continuance of possession under a new arrangement is the equivalent of taking possession under such arrangement; and the keeping upon the premises of stone previously deposited there must be regarded as the equivalent of depositing stone upon the land. We cannot think that the jury were misled by the expressions used in the. instruction / and the instruction otherwise is not regarded as liable to objection or criticism. Certainly it has not omitted any of the elements that are required to cooperate to constitute title by adverse possession.

While as to the early years of the occupation in this case, the evidence of acts of use and possession is somewhat meager, and those acts themselves might be regarded as rather indefinite, we cannot say, as matter of law, that there was nothing to go to the jury with reference to occupation prior to 1870. We think there was sufficient evidence as to such occupation tobe submitted to the jury; and it seems to us that the case was fairly and properly submitted to them upon the law. We are unwilling to disturb their verdict.

It is our opinion, therefore, that the judgment of the court below should be affirmed, with costs; and it is so ordered.