Smith v. Badura

139 P. 107, 70 Or. 58, 1914 Ore. LEXIS 217

• Court: Oregon Supreme Court
• Decided: March 3, 1914
• Status: Published

Opinion

Mr. Justice Bean

delivered the opinion of the court.

1. It is contended.on behalf of plaintiff that the defendants have not established title to the property by adverse possession, for the reason, as we understand the record, that the testimony did not show that they declared that they claimed title to the property; that they recognized the right of one Cox, who held a mortgage upon the lot for $250. In disposing of the contention as to the mortgage, it is sufficient to say that the defendants have acquired whatever right Mr. Cox had in the property.

2. The husband, Joseph Badura, was ill at the time the testimony was taken, and was not able to be present. He transacted the business during the early years of their possession of the lot, and the intention of the defendants as to claiming title is indicated only by their acts in fencing the lot, building thereon, and occupying the same exclusively, which to all appearances was adverse to all the world: Ambrose v. Huntington, 34 Or. 484 (56 Pac. 513).

It is said in Angell, Limitations, Section 383:

“As an adverse possession, then, for the time limited by the statute, confers a right, a purchaser of real estate must not trust merely to the papers and records, but must inquire of the person whether he claims to be the owner of the premises. Publicity and notoriety of possession are sufficient to put a purchaser upon inquiry, and amounts to constructive notice. Putting a fence, for an example, around the land, or erecting buildings upon it, are constructive notice to all the world. And it has been held that, to prevent the operation of the statute, a parol acknowledgment of the adverse possession by the person in possession must be such as to show that he intends to hold no longer under a claim of right; but declarations made merely with a view to compromise a dispute are not sufficient. ”

The matter shown in relation to the mortgage which Mr. Cox did not seem to consider worth foreclosing can scarcely be deemed a dispute in regard to the title or possession of the land.

In Altschul v. O’Neill, 35 Or. 202, 209 (58 Pac. 95, 97), it is said:

“It is not always possible to prove the claim of right or title by direct declaration to that effect, and the purpose of the party in holding must be gathered from his acts and demeanor while occupying. If such person uses the property as his own, that is one manner of declaring to the world, or the true owner, that he is asserting a title in hostility to the true title, and thenceforth the owner must beware. Such entry and use raises a presumption of the claim of right or title. It is not conclusive evidence, but a disputable presumption.”

In Boe v. Arnold, 54 Or. 52, 62 (102 Pac. 290, 293, 20 Ann. Cas. 533), the rule was approved that possession is not required to be adverse to all the world, but is only needful to be adverse to the true owner. In an opinion showing much painstaking research, Mr. Justice McBride said:

“Naked possession in hostility to the claim of the true owner is sufficient as a basis for recovery under this statute [citing Craig v. Cartwright, 65 Tex. 417].”

3. In an action at law tried by the court without a jury, the findings of fact take the place of, and are of the same force and effect as, the verdict of a jury, and may be set aside in the same manner: Section 159, L. O. L. They are conclusive upon this court, if there is any competent evidence to sustain them: Courtney v. Bridal Veil Box Factory, 55 Or. 210 (105 Pac. 896); Ben Bow v. The James John, 61 Or. 153, 156 (121 Pac. 899); Swift v. Mulkey, 17 Or. 532, 540 (21 Pac. 871).

4. The plaintiff attempted to prove a chain of title from the government of the United States to himself. One link in the chain is shown by a deed purporting to be from John S. Collins and wife to E. M. Burton; the signature to the deed being: “John S. Collins, by Edward Collins, His Attorney. Julia A. Collins, by Edward Collins, Her Attorney.” The record contains no proof of any power of attorney or other instrument in writing from John Collins and wife to Edward Collins. The plaintiff’s record title, therefore, is incomplete.

5. The objection raised by plaintiff to the evidence of the defendants as to adverse possession goes to the weight of the evidence as shown by the authorities to which we.have referred. If it should be conceded that plaintiff established a prima facie paper title, the defendants claiming adverse possession for more than 16 years, and having produced evidence in support thereof, the question of the superiority of their respective rights would be for the jury. The trial judge acted in the place of a jury: Altschul v. Casey, 45 Or. 182, 191 (76 Pac. 1083). The possession of the defendants and the exercise by them of acts of ownership over the lot for a long period of time are certainly evidence of adverse possession, and it cannot be affirmatively said that there is no competent evidence to sustain the findings. Therefore, under the provisions of Article VII, Section 3, of the Constitution, the findings being deemed a verdict, this court has no authority to re-examine the facts.

The judgment of the lower court will therefore he affirmed. Affirmed: Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Eakin and Mr. Justice McNary concur.