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 has been asserted, by perhaps most of the courts in this country, that in order that the statute of limitations may run in favor of one in possession of land, the possession must be under claim of right or title.58 There would seem reason to doubt, however, whether, in asserting this requirement, the courts ordinarily have in mind anything more than a restatement of the requirement of hostility of possession.59 They do not, so far as the writer has
57. Zeller v. Eckert 4 How. (U. S.) 295; Mcclenahan v. Stevenson, 118 Iowa, 106, 91 N. W. 925; Mccune v. Goodwillie, 204 Mo. 306, 102 S. W. 997; Collins v. Colleran, 86 Minn. 199, 90 N. W. 364; Hall v. Stevens, 9 Mete. (Mass.) 418. See ante, this section, note 46.
58. See e. g. Mclester Bldg. Co. v. Upchurch, 18 Ala. 23, 60 So. 173; Janke v. Mcmahon, 21 Cal. App. 781, 133 Pac. 21; Stowell v. Lynch, 269 111. 437, 110 N. E. 49; Goulding v. Shonquist, 159 Iowa, 647, 141 N. W. 24; Chesapeake & O. R. Co. v. Rosskamp, 179 Ky. 175, 200 S. W. 496; Erickson v. Crosby, 100 Neb. 372, 160 N. W. 94: Howard v. Wright, 38 Nev. 25, 143 Pac. 1184; Vanderbilt v. Chapman, 175 N. C. 11, 94 S. E. 703; Thomas v. Spencer, 66 Ore. 359, 133 Pac. 822; Vermont Marble Co. v. Eastman, 91 Vt. 425, 101 Atl. 151; Skanski v. Novak, 84 Wash. 39, 146 Pac. 160; Custer v. Hall, 71 W. Va. 119, 76 S. E. 183.
59. See, for instance, occassional statements that the possession "must be adverse, that is, under a claim of right." Sargent v. Ballard, 9 Pick. (Mass.) 251; Colvin v. Burnet, 17 Wend. (N. Y.) 565; State v. Heaphy, 88 Vt. 428, 92 Atl. 813. And see O'donnell v. Mccool, 89 Wash. 537, 154 Pac. 1090.
The notion of the necessity of a claim of title may possibly have originated in the following manner. One is not in adverse possession in case he makes acknowledgment to the rightful owner of the latter's title, that is.
60. That claim of right or title is unnecessary, see Johnson v. Gorham, 38 Conn. 513; Carney v. Hennessey, 74 Conn. 107, 53 L. R. A. 699, 92 Am. St. Rep. 199, 49 Atl. 910; Campau v. Dubois, 39 Mich. 274; Carroll v. Mays, 8 Dana. (Ky.) 178 (semble); Rupley v. Fraser, 132 Minn. 311, 156 N. W. 350; Rude v. Marshall, 54 Mont. 27, 166 Pac. 298; Parker v. Southwick, 6 Watts (Pa.) 377, per Gibson, C. J.; Cox v. Sherman Hotel Co., (Tex. Civ. App.), 47 S. W. 808. Claim of title is not referred to as one of the necessary elements of adverse possession by the Supreme Court of the United States. See Holtzman v. Douglas, 168 U. S. 278, 42 L. Ed. 466. "The whole inquiry is reduced to the fact of entering and the intention to usurp possession." Per Johnson, J., in Bradstreet v. Huntington, 5 Pet. 102, 139.
In Texas the statute defines adverse possession as an actual and visible appropriation of the land, commenced and continued under a "claim of right inconsistent with and hostile to the claim of another," but the expression claim of right in the statute has heen decided to mean merely that "the entry of the limitation claimant must be with the intent to claim the land as his own, to hold it for himself." and that "such must continue to be the nature of his posses-sion." Houston Oil Co. of Texas v. Jones, - Tex - . 198 S. W. 290. See Brown v. Fisher, - Tex. Civ. - , 193 S. W. 357. And in Wisconsin a statutory requirement that the land be held under "claim of title" was regarded a satisfied if there was an entry hostile to the whole world and an intention on the part of the possessor "to hold the land as in case he disclaims title in himself,61 and there is authority for the view that his possession is not adverse if he acknowledges the title of the rightful owner by a communication to a third person.62 It being conceded that the statute does not run if there is a disclaimer of title by the person in possession, it was perhaps assumed as a corollary that a claim of title by such person was necessary to the running of the statute. This explanation of the origin of the requirement is, however, purely conjectural, and occasionally a different theory in this regard is indicated by expressions to the effect that the statute of limitations runs only when there is a technical disseisin, as recognized at common law, and that such a disseisin involves the necessity of a claim of title. In reference to such a theory, it may be said in the first place, as before explained, that adverse possession and disseisin are not absolutely the same.63 In the second place, claim of title, that is, of right, appears never to have been regarded as necessary to effectuate a disseisin. The old digests make no mention of such a requirement, and that it did not exist is sufficiently apparent from the fact that there might be disseisin by one person for the use of another, which operated as a disseisin by the former alone until agreed to by the latter, and after such agreement made them both disseisors.64 Indeed the repeated statements that one who wrongfully dispossesses another, though he claims merely as tenant for years or by statute, or even as tenant at will, is a disseisor, for the reason that he cannot qualify his own wrong,65 would seem to show-that claim of title by him was immaterial.66 his own." Chicago & N. W. Rwy. Co. v. Groh, 85 Wis. 641, 55 N. W. 714.
61. Post, Sec. 507, note 37.
62. Post, Sec. 507, note 38.
63. Ante, Sec. 500. notes 18-20.
64. See Vin. Abr. Disseisin (E); Bac. Abr. Disseisin (A);
Co. Litt. 180b.
65. 1 Rolle's Abr. Disseisin (I); Vin. Abr. Disseisin (I); Com. Dig. Seisin, (Fl); Co. Litt. 271. See post, 511, notes 16-18.
66. As to the asserted necessity, that to constitute a disseisin, there must be an intenit has been said that by claim of right or title, in connection with the doctrine of adverse possession, is meant merely "an intention to appropriate and hold the land as owner, and to the exclusion, rightfully or wrongfully, of every one else."67 It is most unfortunate, if this is the idea which the courts intend to convey, that they use language which on its face means something entirely different. The presence of such an intention to appropriate is no doubt necessary for the purpose of adverse possession, but this is, it is submitted, not because without it the possession would not be adverse, but because without it there would be no possession.68