This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
It was recognized at common law that, in determining whether one was a disseisor or a trespasser merely, his intention, as indicated by his acts, was to be considered,69 and so at the present day, in determining whether one person has taken possession of property previously in the possession of another, his acts musl be such as to show his intention to exercise exclusive control, at least for the time being.70 And this, it is conceived, must be the meaning of the occasional judicial statements that, in order to acquire title by adverse tion to claim a fee, see post, Sec. 511, note 19.
67. Sedgwick & Wait, Trial of Title to Land (2d Ed.), Sec. 756, quoted, apparently with approval, by Holmes, C. J., in Bond v. O'gara 177 Mass. 139, 83 Am. St. Rep. 265, 58 N. E. 275. See also, to the same effect, Fear v. Barwise, 93 Kan. 131, 143 Pac 505; Rupley v. Fraser, 132 Minn. 311, 156 N. W. 350; Morrison v. Linn, 50 Mont. 396, 147 Pac. 166 (construing statute).
68. Ante, Sec. 14.
69. Co. Litt. 153b, quoting the statement of Bracton quae-rendum est a judice, quo animo hoc fecerit, language which is again quoted in Towle v. Ayor, 8 N. H. 57; Bond v. O'gara, 177 Mass. 139, 83 Am. St. Rep. 266, 58 N. E. 275.
70. So in Pollock v. Wright, Possession, Sec. 14, it is said that "to constitute a dispossession there must in every case be positive acts which can be re-ferred only to the Intention of acquiring exclusive control." And as to the necessity of the element of Intention in possession see Llghtwood, Possession of Land, p. 21; Holmes, The Com mon Law. 206,et seq.; Salmond, Jurisprudence,Sec.97.
Possession, there must be an intention to claim title.71 That is, there must be an intention to assert dominion over the property to the exclusion of others. But the requirement of an intention to exercise exclusive control over the property, involved in the asserted necessity of "an intention to claim title," in order that the rightful owner may be regarded as dispossessed, is to be distinguished from the asserted requirement of a "claim of title," in order to make the statute of limitations effective as against the dispossessed owner.
As tending to negative any requirement of claim of right or title as necessary to put the statute of limitations in motion, reference may be made to the general acceptance of the view that, in the absence of an express statutory requirement to that effect, the statute will run regardless of whether the wrongful possession was taken under a bona fide claim of right.72 There
71. Brown v. Cockerall, 33 Ala. 38; Wilson v. Hunter, 59 Ark. 626, 43 Am. St. Rep. 63, 28 S. W. 419; Watrous v. Morrison, 33 Fla. 261, 39 Am. St. Rep. 139, 14 So. 805; Riley v. Griffin, 16 Ga. 141; Winn v. Abeles 35 Kan. 85, 57 Am. Rep. 138, 10 Pac. 443; Worcester v. Lord, 56 Me. 265, 96 Am. Dec. 456; Ford v. Wilson, 35 Miss. 490, 72 Am. Del. 137; Pilaris v. Jones, 122 Mo. 125, 26 S. W. 1032; Simmons v. Nahant 3 Allen (Mass.) 316; Haney v. Breeden, 100 Va. 781, 42 S. E. 916.
72. Newsome v. Snow, 91 Ala. 641, 24 Am. St. Rep. 934, 8 So. 377; Unger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100; Montgomery & Mullen Lumber Co. v. Quimby, 164 Cal. 250, 128 Pac. 402; French v. Pearce, 8 Conn. 443, 21 Am. Dec. 480; May v. Dobbins, 166 Ind. 331, 77 N. E.
353; Rutter v. Small, 68 Md. 133, 6 Am. St. Rep. 434, 11 Atl. 698; Warren v. Bowdran, 156 Mass. 280, 31 N. E. 300; Dawson v. Falls City Boat Club, 136 Mich. 259 112 Am. St. Rep. 363, 99 N. W. 17; Wilkerson v. Eilers, 114 Mo. 245, 21 S. W. 514; Omaha & F. Land & Trust Co. v. Hansen, 32 Neb. 449, 49 N. W. 456; Foulke v. Bond, 41 N. J. L. 527; Humbert v. Trinity Church 24 Wend. (N. Y.) 587; Morrison v. Holliday, 27 Ore. 175, 39 Pac. 1100; Reeves v. Dougherty, 7 Yerg. (Tenn.) 222, 27 Am. Dec. 496; Kinney v. Vinson, 32 Tex. 135; Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171; Ovig v. Morrison 142 Wis. 243, 125 N. W. 449.
In Iowa good faith is necessary; Litchfield v. Sewel, 97 Iowa, 247, 66 N. W. 104; Clark v. Sexton, 122 Iowa, 310, 98 N.
504] Adverse Possession. 1941 would seem to be a certain inconsistency between such a view and the view that the statute will not run unless the wrongful possessor, after obtaining possession, asserts a claim of right.73 To require one, in order to enjoy the benefit of the statute, to assert a claim of right, even though he knows it to be false, involves the placing of a premium upon dishonesty, in contravention of the ordinary judicial policy.74
- Evidence. Conceding the necessity of a show ing by the person in possession of a claim of right or title on his part, such claim may no doubt be shown by evidence, of declarations by the possessor,75' but ordinarily, it appears, it is to be inferred from the fact that the possessor's entry was under color of title.76 or from the doing of acts by the possessor during his posses
W. 127; Goulding v. Shonquist, 159 Iowa, 647, 141 N. W. 24. And such seems to be the view of the court in Jaspersoh v. Scharnikow, 150 Fed. 571; Skan-ski v. Novak, 84 Wash. 39, 146 Pac. 160.
73. "The expressions claim of title, or right, or ownership are, in connection with a naked adverse possession, inaccurate, for they imply a belief in the validity of the claim, or good faith on the part of the claimant." Sedgwick & Wait, Trial of Title to Land, Sec. 756. But it has been said in a recent New York case that claim of right, though necessary, need not be bona fide ; Ram-apo Mfg. Co. v. Mapes, 216 N. Y. 362, 110 N. E. 772.
74. In Iowa it has been said that one's knowledge of a defect in his title is not incompatible with good faith on his part. Hughes v. Wyatt, 146 Iowa, 392, 125 N. W. 34; Collins v.
Reimers, 181 Iowa, 1143, 165 X. W. 373.
75. Henry v. Brown, 143 Ala. 446, 39 So. 325. And see the following cases, in which assertions of title by the wrongful possessor were aimitted to show the adverse character of the possession. Stockton Sav. Bank v. Staples, 98 Cal. 189; St. Peters Church v. Beach, 26 Conn. 355; Burr v. Smith, 152 Ind. 469, 53 N. E. 4; Cottle v. Howerton, 18 Ky. L. Rep. 121, 36 S. W 562; Jacobs v. Callaghan, 57 Mich. 11, 23 N. W. 454; Brown v. Kohout, 61 .Minn. 113, 63 N. W. 248; Westenfelder v. Creen, 24 Ore. 448, 34 Pac. 23; Texas &. N. O R. Co. v. Broom, 53 Tex. Civ. App. 78. 114 S. W. 655