In the present case, even if the verdict were regarded as a general one, and therefore entitled to be supported by the presumption that sufficient facts existed to sustain it, yet we should feel constrained to reverse the judgment, because of the errors complained of in the eighth, ninth, and tenth assignments.
The plaintiff's counsel requested the court to charge the jury that, in order that possession of land may overcome the title of the true owner, "there must be a concurrence of the following elements: Such possession must be actual, hostile, exclusive, open, notorious, and continuous for the whole period of ten years. Every element in this enumeration is absolutely essential, and if one of these elements does not exist there can be no adverse title acquired;" and the court did so charge; but the court then proceeded to say that, after having disposed of the written instruction. "I propose to go outside of what is there stated and give one on my own motion." Those voluntary instructions given by the learned judge, though correct in most respects, were imperfect in the very particulars in which we have found the special verdict defective. The jury were not told that, to make out the defense, the possession, in addition to certain other features properly specified, must be shown to have been actual and exclusive. * * *
b. It must be open, visible and notorious.
Scates, C. J., in
17 Illinois, 498.
The intent to assert title in himself by his son, may be clear enough from the proof, for this must, be shown. Blunden v. Baugh, 3 Croke R. 302. But the doctrine of adverse possession is to be taken strictly, and is not to be made out by inference, but by clear and positive proof, Bonnell et al. v. Sharp, 3 John. R. 169: Rochelle ads. Holmes, 2 Bay R. 491, and proof of actual ouster shown. 2 Espin. N. P. 9, old paging. The possession must be with such circumstances as are capable in their nature of notifying to mankind that he is upon the land, claiming it as his own. in person or by tenant - it must be visible, open, exclusive, Irving v. Brownell, 11 111. R. 413; it must be hostile in its inception, and so continue, Turney v. Chamberlain, 15 111. R. 273; and notorious; and not secret, as this cannot answer the purpose of notoriety to adverse claimants, cannot extinguish their claim for not being put in in due time. Adams on Eject. App. 485; Angell on Limit. 400, § 4, p. 416, § 13, p. 427, § 19. For the law proceeds upon the presumption of an acquiescence, which cannot be where the possession and claim are unknown; and the acts of possession are such as not to give notoriety to it. Id.
c. It must be with hostile intent.
84 Wisconsin, 276. - 1893.
Ejectment. Plaintiff and defendant owned adjoining parcels of land. Defendant built a fence through the forest as he opened up his land lying near the boundary and has occupied up to the fence for more than twenty years. A survey now shows that he had enclosed a portion of plaintiff's land. Judgment for plaintiff. Defendant appeals.
Pinney, J. - * * * It is contended that the court erred in refusing to direct a verdict for the defendant - first, on the ground that the undisputed evidence showed that the defendant had held continuous and adverse possession of the premises under claim of title for more than twenty years before the commencement of the action; and, second, that it conclusively appeared that the boundary line in question had been settled by acquiescence more than fifteen years before the action was brought. What constitutes adverse possession is for the court to determine, but the facts which establish it are for the jury, and the question of the character of the possession is generally submitted to them. Gross v. Welwood, 90 N. Y. 638. It was for the jury to say what was the real character of the defendant's possession of the strip in dispute, and whether it was taken and maintained with an intention by the defendant to oust the true owner, - whether it was adverse to him in fact. To constitute adverse possession there must be the fact of possession and the hostile intention, - the intention to usurp posession; and, if there be possession of land by one not the true owner, the presumption of law is that such possession is in accord or amity with, and in subservience to, the true title and legal possession of the owner. Dhein v. Beuscher, 83 Wis. 316; Schwallback v. C, M. & St. P. R. Co., 69 Wis. 298; Hacker v. Horlemus, 74 Wis. 21; Harvey v. Tyler, 2 Wall. 349. The whole inquiry is reduced to the fact of entering, and the intention to usurp possession. Probst v. Trustees, 129 U. S. 191, 192. Permissive possession is never a basis for the statute of limitations, and the rule is that evidence of adverse possession must be strictly construed, and every presumption is in favor of the true owner, and that the defendant entered under his conveyance, and that his possession is only co-extensive with his title, and restricted to the premises granted by it. Sydnor v. Palmer, 29 Wis. 252; Graeven v. Dieves, 68 Wis. 317; Fairfield v. Barrette, 73 Wis. 468. The instructions of the Circuit Court on the question of adverse possession were as favorable to the defendant as the law would justify, and the jury were properly instructed that, "whether the defendant's possession was adverse depended upon the quo animo with which he entered upon the land; whether it was to hold it adversely, or whether it was merely tentative or provisional, depending upon where the true line should be afterward ascertained to be." Whether the entry of defendant, and his continued possession, were an ouster of the plaintiff and his grantor, or were merely in subordination to the plaintiff, or permissive, was a question of fact for the jury. Hacker v. Horlemus, 74 Wis. 25. * * *
The jury, in view of all the facts and circumstances, might well say that the old fence was not intended as a permanent boundary, but was built and maintained as a matter of convenience until the true line should be ascertained, and that the defendant's possession of the strip in question had not been adverse for twenty years before the suit was commenced. While possession, occupation, and improvements for several years, with the knowledge of the true owner, may be prima facie evidence of adverse possession, yet they are not conclusive, and may be explained and rebutted by proof of facts showing that the possession was not in fact adverse, Worcester v. Lord, 56 Me. 265; Dow v. McKinney, 64 Me 138; Lamb v. Coe, 15 Wend. 642; that it was permissive or provisional, and without the intention in fact or claiming or acquiring title.