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 .
The question has frequently arisen whether, when an owner of land, by mistake as to the boundary line of his land, takes possession of another's land, and holds it for the statutory period, he thereby acquires the title as against the real owner. In some states, in such a case, the possession has been regarded as adverse, without reference to the fact that it is based on mistake, it being sufficient that there is an actual and visible possession without any recognition of the other's title.90 In other states ordinarily begin to run in favor of a third person, who takes wrongful possession during the life tenancy, until the termination of the estate for life,97 and, presumably, as against one who has a reversion upon an estate for years, the statute does not begin to run, in favor of one who takes possession during the existence of the estate for years, until the termination of such estate Nor, it seems, does the fact that the reversioner or remainderman has a right of entry for a forfeiture before the normal expiration of the particular estate cause the statute to run as against him before such expiration." In one or two states, however, the fact that the remainderman is by statute enabled to maintain a suit to quiet title even before the death of the life tenant is regarded as causing the statute to run as against him in favor of a wrongful possessor, immediately upon his acquisition of knowledge of such wrongful possession.1 If the particular estate for life or for years is voluntarily created after the statute has begun to run, it
88a. Post, Sec. 511, notes 30-33b.
89. Ante, Sec. 501, note 31.
90. Lucas v. Provinen, 130 Cal. 270, 62 Pac. 509; French v. Pearce, 8 Conn. 439, 21 "Am. Dec. 680; Krause v. Nolte, 217 111. 298, 3 Ann. Cas. 1061, 75 N. E. 362 (semble); Daily v. Boudreau, 231 111. 228, 83 N. E. 218 (sent-ole); Rennert v. Shirk, 163 Ind. 542, 72 N. E. 546; Dowell v. Dillon, 178 Ky. 531, 199 S. W. 6; Jordon v. Riley, 178 Mass. 524, 60 N. E. 7; Greene v. Angle-mire, 77 Mich. 168, 43 N. W. 772; Weeks v. Upton, 99 Minn. 410, 109 N. W. 828; Stevens v.
Velde, 138 Minn. 59, 163 N. W. 796; Crowder v. Neal, 100 Miss. 730, 57 So. 1; Rude v. Marshall, 54 Mont. 27, 166 Pac. 298; Baty v. Elrod, 66 Neb. 735, 92 N. W. 1032, 97 N. W. 343; Zweimer v. Vest, 96 Neb. 399, 147 N. W. 1129; Crary v. Goodman, 22 N. Y. 170; Yetzer v. Thoman, 17 Ohio St. 130, 91 Am. Dec. 122; Parker v. Wolf, 69 Ore. 446, 138 Pac. 463; Miles v. Pennsylvania Coal Co., 245 Pa. 94, 91 Atl. 211; Erck v. Church, 87 Tenn. 575, 4 L. R. A. 641, 11 S. W. 794; Williams v. Hewitt, 128 Tenn. 689, 164 S. W. 1198; Burnell v. Mathe fact that, in such case, the possession of the other's land is under mistake, has been regarded as frequently material, and a distinction is asserted to the effect that, if such possession up to the boundary as located is with the intention of claiming title to that extent, even though the boundary be incorrect, the possession is adverse, while, if it is with the intention of claiming title to that extent only if the boundary is correct, the possession is not adverse.91 The decisions of a particular court in this regard are not infrequently lacking in entire consistency, one with another, and occasionally the judicial discussion of the subject is such as to leave us somewhat in the dark as to the exact position of the court on the question.
Though the courts which assert the possible mate riality of mistake as to the boundary line, ordinarily state
that whether an intention to claim title to tin- boundary as located in spite of any mistake therein is the important consideration, they fail to tell us what they-mean by such an intention, and in the actual discussion loney, 39 Vt. 579, 94 Am. Dec. 358; Wissinger v. Reed, 69 Wash. 684, 125 Pac. 1030; Mielke v. Dodge, 135 Wis. 388, 115 N. W. 1099; Ovig v. Morrison, 142 Wis. 243, 125 N. W. 449. See editorial notes 9 Harv. Law Rev. at pp. 289, 467; 10 Columbia Law Rev. at p. 665; 11 Mich. Law Rev. 57. 91. Smith v. Bachus, 195 Ala. 8, 70 So. 261; Couch v. Adams,
111 Ark. 604, 164 S. W. 728: Bossom v. Gillman, 70 Fla. 310, 70 So. 364; Grube v. Wells, 34 Towa, 148; Keller v. Harrison, 151 Iowa, 320, Ann. Cas. 1913A, 30, 128 N. W. 851, 131 N. W. 53; Edwards v. Fleming, 83 Kan. 653, 33 L. R. A. (N. S.) 923,
112 Pac. 836; Turner v. Morgan, 158 Ky. 511, 52 L. R. A. (N. S.)
106, 165 S. W. 684; Preble v. Maine Cent. R. Co., 85 Me. 260, 21 L. R. A. 829, 35 Am. St. Rep. 366, 27 Atl. 149; Borneman v. Milliken, 116 Me. 76. Inn Atl. 5; Mulligan v. Fritts. 226 Mo. 189, 125 S. W. 1101 Vanderblll v. Chapman. 175 N. C. 11.94 S. E. 703; Dunnigan v. Wood, 58 Ore. 119, 112 Pac 531: Chance v. Branch, 58 Tex. 490; Davis v. Owen. 107 Va 283, 13 L. R. A. (N. S.) 728, 58 8. E. 581 Christian v. Bulbeck, 120 Va. 74, 90 S. E. 661; Shanski v. Novak, 84 Wash. 39, 146 Pac. 160; Mc-connick v. Sorenson, 58 Wash. 107. 137 Am. St Rep. 1047, 107 Pac. 1055. Snell v. Stelling, 83 Wash 248. 115 Pac. 466 of the particular case they not infrequently shift the inquiry from one as to the existence of an intention to claim title in the contingency of mistake to one as to whether a claim of title was actually made or indicated during the period of possession. An intention to claim title in spite of a mistake in the location of the boundary might mean an intention to retain possession until legally ejected, even though convinced of the mistake, or it might mean merely an intention to assert a right to the possession although relinquishing possession by reason of proof of mistake. Probably what the courts have in view in asserting this distinction is that the possession is not adverse as regards land erroneously included in one's possession by reason of a mistake in the boundary line, provided he concedes that if there is any such land he has a mere permissive possession, that he holds possession, in other words, in subordination to any right therein on the part of the adjoining owner, while his possession is adverse if he does not concede the possibility of mistake, and thus fails to recognize any possibility of right in the other. So regarded, it may be questioned whether the position of the courts asserting the possible materiality of mistake in this regard is so entirely out of harmony with that of the courts which assert its immateriality as is frequently assumed. Even the latter courts would hardlv regard one's possession of land enclosed by mistake as adverse, if the possessor explicitly acknowledges to the rightful owner that any such land is held by him in subordination to any right in the latter and their assertion of the immateriality of mistake in this regard appears to mean no more than that the fact of mistake is not a basis for inferring such an acknowledgment on the part of the possessor that he holds in subordination to any possible rights in the true owner. But this appears to involve the same position as that held by the courts which assert the possible materiality of the mistake, in so far as they recognize92 a presumption of intention to claim title regardless of the mistake, that is. a presumption that, in spite of the mistake, the poss sion is adverse. Adopting this view, it is only in so far as the courts, which assert the possible materiality of the mistake, recognize a contrary presumption,93 of an intention on the part of the wrongful possessor not to claim title if he is mistaken as to the boundary, that the assertion of the materiality of mistake as to boundary becomes of substantial importance. That the presumption is properly in favor of the adverse or hostile character of the possession rather than against it has been previously argued,94 but whatever presumption in this regard may be recognized, the introduction of the element of mistake in the discussion of the question of adverse possession is, it is submitted, unnecessary and undesirable. In no case except in that of a mistake as to boundary has the element of mistake been regarded as having any significance,95 and there is no reason for
92. As in Huffman v. White, 90 Ala. 354, 7 So. 816; Couch v. Adams, 111 Ark. 604, 164 S. W. 728; Heath v. Kirkpatrick, 48 Iowa, 78; Zimmerman v. Ginter, 69 Kan. 331, 63 Pac. 657; Patterson v. Hollis, 90 Kan. 655, Ann. Cas. 1915B, 725, 136 Pac. 258; Turner v. Morgan, 158 Ky. 511. 52 L. R. A. (N. S.) 106, 165 S. W. 684 (semble) ; Goltermann v. Schiermeyer, 111 Mo. 404, 19 S. W. 484, 20 S. W. 161; Man v. Phillips, - Mo - , 186 S. W. 988; Nichols v. Tallman, Mo., 189 S. W. 1184; Pearson v. Dryden, 28 Or. 350, 43 Pa*'. 166. See ante, Sec. 295.
93. As in Lecroix v. Malone, 157 Ala. 434, 47 So. 725; Jahnke v. Seydel, 178 Iowa, 363, 159 N W. 986: Shanline v. Wiltsie, 70 Kan. 177. 3 Ann. Cas. 140, Tx
Pac. 4:;6; Davis v. Alexander, -Mo. - , 183 S. W. 563; Ware v. Cheek. Mo.. 201 S. W. 847: Christian v. Bulbeck, 120 Va. 74. 90 S. E. 661. See Hornsby v. Tucker, 180 Ala. 418, 61 So. 92
94. Ante, Sec. 503, note
95. "If possession through mis take were held not to be advi very little room would be left for the statute of limitation, tor al most every man who buys land under a had title labors under the mistaken Idea thai his deed is good and effectual." 2 Dem-bitz, Land Titles, 1397 "Adopt the rule that an entry and posion under a claim of right If through mistake, doe not con stitute an adverse possession * * * the inquiry no longer is whether visible possession with the Intent to possess, under
2 R. P. - 48 attributing greater weight thereto when the mistake is as to the proper location of a boundary than when it is a mistake as to the title to all the land wrongfully possessed. And to introduce the element of mistake, and then limit its significance by an inquiry as to the intention which the possessor may have as to his course of action in case there should be a mistake, an intention which has ordinarily no existence whatsoever, is calculated only to cause confusion in the minds of the jury, without, it is conceived, any compensating advantage.
In case a temporary boundary line is located by agreement between the adjoining owners, with the understanding that they shall occupy with reference thereto until the proper line is ascertained, the possession of one beyond the proper line, in accordance with such temporary location, has been regarded as not adverse to the other.96 His possession in such case is in effect permissive, and involves a recognition of the other's title to the extent of that title.