Opinion
No. 35381.
May 24, 1943. Suggestion of Error Overruled September 27, 1943.
1. REVERSIONS.
Defendant who claimed that county had a right to use land so long as it was used for school purposes, and that defendant owned reversionary interest in the land, claimed merely a "possibility of reverter."
2. APPEAL AND ERROR.
Where there was no final ruling nor request therefor on objections to evidence, the reviewing court assumed that such evidence was taken into consideration by the chancellor.
3. ADVERSE POSSESSION.
Title acquired by "adverse possession" is complete and avails against claim of any person regardless of record evidence by which such claim may be shown.
4. ADVERSE POSSESSION.
Defendant who resisted plaintiff's claim to title by adverse possession on ground that plaintiff's holding was permissive, had burden of establishing that original occupancy by plaintiff was permissive.
5. ADVERSE POSSESSION.
The presumption of a "lost grant" is inherent in doctrine of title by "adverse possession" and is but the reflected light from the principle itself and when an adverse possession is shown there is no need to seek the aid of such presumption.
6. REVERSIONS.
A claim of possibility of reverter was required to arise under deed or other instrument and could not be shown by mere understanding of parties.
7. CUSTOMS AND USAGES.
Where plaintiff county claimed by adverse possession land on which school was located, and defendant claimed that county's holding of the land originated permissively and that defendant was vested with reversionary interest, evidence of practice in other school districts by which grantors included reversions in their deeds to school lands was not relevant.
8. ADVERSE POSSESSION.
Evidence established that county obtained by adverse possession title to land used by county for school purposes.
9. ADVERSE POSSESSION.
In county's suit to remove cloud on title to land used for school purposes and claimed by county by adverse possession, wherein no original deed to county was shown, evidence failed to establish defense that county's use was permissive and conditioned on use for school purposes, and that possibility of reverter remained in defendant.
APPEAL from chancery court of Itawamba county, HON. JAMES A. FINLEY, Chancellor.
Mitchell Clayton, of Tupelo, for appellant.
The lower court held that the possession of the property for school purposes had been permissive and entered a decree dismissing the original bill and the prayer of the cross-bill was granted.
The lower court held that no presumption of deed or grant arose from the long continued adverse possession shown. We submit that this is contrary to the rule well established in this state. Long continued adverse possession of land raises a presumption of deed or grant. This is well settled by decision of our court.
Grand Gulf Railroad Banking Co. v. Bryan, 8 Smedes M. 234; Nixon's Heirs v. Carco's Heirs, 28 Miss. 414; Caruth v. Gillespie, 109 Miss. 679, 68 So. 927; Stevenson's Heirs v. McReary, 12 Smedes M. 9, 51 Am. Dec. 102; Scarborough v. Native Lumber Co., 118 Miss. 138, 79 So. 84; Hewling v. Blake, 110 Miss. 225, 70 So. 247; Carter v. Walker (Ala.), 65 So. 170; United States v. Chavez, 175 U.S. 509, 20 S.Ct. 159, 44 L.Ed. 255; 2 C.J. 288 et seq.; 2 C.J.S. 875.
This is not a case in which appellant is attempting to reverse the chancellor upon a question of fact. It is our contention that the lower court failed to apply the rule of law so well established in this state that long continued adverse possession raises a presumption of deed or grant.
We also submit that the lower court was in error in refusing to permit the witnesses for complainant to prove verbal claims of ownership which would have shown the hostile character of complainant's possession. If this testimony had been admitted then the court could not have held that the possession of complainant was permissive. This testimony was competent.
Parrot v. Baker, 82 Ga. 364, 9 S.E. 1068; 2 C.J. Secundum, Sec. 221, pp. 826, 828, 829.
C.R. Bolton, of Tupelo, for appellee.
There are two salient and undisputed facts in this case. (1) The complainant, appellant here, has absolutely no record title whatever to the land in question. (2) The defendant, appellee, has a perfect record title to the land, without a break from the United States Government.
In order to recover, appellant must have proved its right to the land. The complainant's own pleadings show that it did not know how it got its claimed rights in the property. Appellee was not denying the present right to use, but as the holder of an unbroken chain of legal title claimed the reversion. Appellant sought to establish the exclusive right in it. It claimed this by three methods. When the bill was first filed, it claimed that the land was dedicated to complainant. This would have supported defendant's claim for the reason that in case of dedication, the owner of the legal title has the reversionary right in the land when abandoned for school purposes. This was all the defendant contended and there would therefore have been no issue. In order to escape this, on the trial, complainant amended his bill to eliminate dedication and claim the land by (1) presumption of a lost deed, or (2) adverse and hostile possession, neither of which avail the complainant anything in this case.
The law as to presumption of lost deeds is a device intended by the law to supply missing links for the purpose of promoting public tranquility, but like all presumptions it vanishes when the facts are disclosed and it yields to the facts.
Caruth v. Gillespie, 109 Miss. 679, 68 So. 927; Hewling v. Blake, 110 Miss. 225, 70 So. 247; Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703; Scarborough v. Native Lumber Co., 118 Miss. 138, 79 So. 84; Carter v. Myers, 132 Miss. 698, 95 So. 252; Sheedy v. State, 152 Miss. 82, 118 So. 372; United States v. Chavez, 44 L.Ed. 255.
The evidence in this case discloses facts which refute the presumptions of the lost deeds.
Appellant sought to establish title to the land in question on the further ground of adverse possession. The proof offered in the court below to sustain adverse possession was grossly insufficient. Practically the only thing that was proved was that there had been a school on this site for a long time. This was not controverted, nor was it in conflict with the defendant's claim that the use for a school was permissive and that the reversion had always been in the holder of the record title, which was the defendant and his predecessors in title. Our court has distinctly held that mere possession without adverse character being shown does not establish title.
Neal v. Newburger Co., 154 Miss. 691, 123 So. 861; Bullock et al. v. Greer et al., 181 Miss. 190, 179 So. 264; Barron v. Federal Land Bank of New Orleans, 182 Miss. 50, 180 So. 74; Alexander v. Polk, 39 Miss. 737; 1 Am. Jur. 793, Sec. 3.
Adverse possession will not be as readily established in favor of the public as it will in favor of private persons. As stated in the case of Alexander v. Polk, cited above, it implies that it commenced in wrong — "by ouster and disseizin, and is maintained against right." This is an added reason for favoring the presumption that possession is permissive as to the public. The government and its subdivisions, which would include Itawamba County holding for a school district, are presumed to do right and I feel safe in saying that the courts will not impute wrongdoing to a county or to the public, even to establish a presumption, but will require a strict proof of actual wrong on the part of the public before they would hold that the public "maintained against right." The record title in this case is clearly in the defendant. In order to establish adverse possession, it must be held that at some time the county or the school district wrongfully took this property away from its rightful owner. We do not know at what time to attribute this wrongful act to the public and therefore cannot know under what constitution of the state it should be held to have happened, but to whatever period it may be attributed, it would have been a violation of the United States Constitution and the Bill of Rights which prohibited the taking of private property for public use without due compensation, or in other words, prohibited the wrongful taking by ouster and disseizin, upon which it is necessary to predicate use by adverse possession. The courts just will not hold the public guilty of such conduct without clear proof thereof. On the other hand, that the possession is permissive and in subordination to the rightful owner will rather imply a dedication for a public purpose by the owner under which he would retain the reversion, rather than imply the wrongful taking by the public not only in disregard of the owner's rights but also in disregard of prohibition of the United States Constitution and of the moral law.
By a common law dedication, the fee does not pass. The public acquires only an easement and such an interest in the land as is necessary for its enjoyment of the use. The fee ordinarily remains in the proprietor. The public holds the easement in trust. The legal and equitable title to the land is not lost or destroyed by dedication.
Dantzler v. Mississippi Highway Commission, 190 Miss. 137, 199 So. 367; 16 Am. Jur. 401, Sec. 55; 16 Am. Jur. 402, Sec. 56; 24 R.C.L. 582.
The right of reversion in this property is clear, even if it be held that it was held by dedication for school purposes and not merely by permission.
Rowzee v. Pierce, 75 Miss. 846, 23 So. 307; Board v. Edson, 18 Ohio St. 221.
One having the record title to real estate is presumed to have possession to such real estate until something occurs to show otherwise. In fact, all reasonable presumptions are made in favor of the true owner in case of the claim by adverse possession, including the presumption that the actual possession is subordinate to the right of the true owner.
1 Am. Jur. 925, Sec. 238.
The appellant contends it is not seeking to reverse the chancellor on question of fact, but of application of the law. The complainant below raised issues of fact and while the evidence on complainant's part to support them was meager, it was refuted by evidence for the defendant, and on that conflict the court found for the defendant. While the evidence for complainant as to adverse possession was very slight, there was substantial evidence for defendant against it, to-wit: maintaining fences and gates, cutting timber, building driveways, etc. Upon these facts, the court found as a fact the possession of the school was permissive and not adverse. Appellant cannot escape these findings of fact.
The County of Itawamba filed its bill to remove cloud upon the title to certain property used for school purposes. The chancellor fixed the boundaries of this property, and its description will be set out by the Reporter in the margin.
Beginning at the northwest corner of Lot 6 in Block 5 of the outside donation of the Town of Fulton, Mississippi, and which corner is the intersection of the north line of the lot sold by A.D. Graham to A.J. Maddox, with the east line of Clifton Street or the Fulton and Aberdeen Highway, running easterly along said line 304 feet more or less to the corner of fence, running thence along fence in the northwesterly direction 300 feet more or less to the south line of the drive or street leading from Clifton Street to the residence of I.L. Sheffield; thence in a westerly direction 197 feet more or less to a point on the east line of Clifton Street or the Aberdeen and Fulton public road which is 263 feet north of the point of beginning; thence south along the east line of said Clifton Street 263 feet to the point of beginning; all being in Block 5 of the outside donation of the Town of Fulton, in Itawamba County, Mississippi, and being in Section 25, Township 9, Range 8, East.
It was alleged, but not proven, that the county had a deed to the lands, but its claim is based upon an adverse possession extending back for a period "beyond the memory of man now living." The evidence showed that it had been so used for nearly eighty years. The defendant, appellee here, in his answer did not assert an absolute title but stated "he is claiming that he has a reversionary interest in and title to said property, for the reason as heretofore set forth, and asserts that he is the owner of the reversionary interest therein; that he does not dispute the right of the complainant to maintain a school on said property, so long as it may be used for the purpose of teaching school therein." It is clear therefore that defendant claims merely a possibility of reverter. Ricks v. Merchants Nat. Bank Trust Co., 191 Miss. 323, 2 So.2d 344.
Evidence as to the actual assertion of claim thereto by the county was objected to but ruling thereon was not made by the chancellor. Other objections to testimony by both parties were likewise deferred upon like reservation, and since there was no final ruling thereon nor request therefor, we must assume that this evidence was taken into consideration by the court in his decision. Banks v. Banks, 118 Miss. 783, 79 So. 841; Griffith, Chancery Practice, Section 583.
However, it is clear that the complainant met its burden of proof showing an adverse possession for a period greatly in excess of the statutory prescriptive, and that in the absence of evidence sufficiently explaining or modifying its possession, it would be entitled to a decree.
The contention of the defendant is that the holding of the complainant originated permissively and that the defendant was vested with a reversionary interest. There is evidence that the defendant made some use of the property by cutting timber and building fences and otherwise, but he makes no contention that his claim is based upon an adverse user, but rather that such use was evidence of the fact of his claim. In this light, the payment of taxes thereon at isolated intervals by his grantor must also be adjudged. In his testimony, he states "I have claimed merely this: When the school was through with that part of the property which they are using, that is on the outside down there, then it was mine; that is, I own the title when they abandon it." And again he stated: "I base it on this, that I have a record title to this property from the Government on down to me and that the records don't show that any deed was ever made to anyone other than me." That he based his claim upon his deed was again elsewhere asserted. The title acquired by adverse possession is complete and avails against the claim of any person regardless of the record evidence by which such claim may be shown.
But the defendant urges that the county was holding the lands permissively and that no tenure thereof, however prolonged, could be effective to establish an adverse holding. Putting aside well-recognized exceptions to this rule, the conclusion is correct if the premise be assumed. But he must establish as part of his defensive burden that the original occupancy by the county was permissive. 2 C.J.S., Adverse Possession, Sec. 214, subsec. b, 216.
To meet this burden, defendant was permitted to quote Dr. Walker, his immediate grantor, to the effect that there was a verbal understanding that the county could use the property for school purposes as long as it desired, but that upon abandonment the title would revert to the original grantor or his assigns and that this agreement "had been handed down to him." The ruling on objection to this testimony was reserved and not thereafter called to the court's attention. We question but need not decide the admissibility of this hearsay evidence (as to which see Catchot v. Town of Ocean Springs, 78 Miss. 509, 29 So. 468), especially since it is not sought to be used to reinforce a right based upon mere claim of title. However, the testimony shows that two of the trustees of the school disputed with Dr. Walker the right of the latter to fence off a part of the property, claiming that there was a deed to the school and threatening to seek the aid of the courts to prevent what they deemed an invasion of the school lands.
The record shows that the learned chancellor was influenced in his decision by the absence of proof of an original grant or deed to the county and denied the right of the county to use naked possession as a basis for a presumption of the existence of a deed. The fiction or presumption of a lost grant is inherent in the doctrine of prescriptive title by immemorial possession and use. It is but the reflected light from the principle itself, and when an adverse possession is shown, there is no need to seek the aid of such presumption. 2 C.J.S., Adverse Possession, sec. 231, subsec. a. If such presumption were here involved, it would, however, operate to aid not the case for the defendant but that of the complainant. Nixon's Heirs v. Carco's Heirs, 28 Miss. 414; Caruth v. Gillespie, 109 Miss. 679, 68 So. 927; Hewling v. Blake, 110 Miss. 225, 70 So. 247; J.H. Leavenworth Son v. Hunter, 150 Miss. 245, 116 So. 593.
The defendant is remitted therefore to his contention that he and his predecessor in title understood that these lands were so held. A possibility of reverter may not be so shown. C.F. Magee v. Magee, 37 Miss. 138. None of the deeds in his chain of title discloses such conditional tenure. His claim must arise under deed or other instrument. There is no claim that his occasional uses of the property are bases for establishment of a reversion by acts in pais. Defendant does not seek to disrupt the continuity of the county's open, notorious and exclusive occupancy by a hostile and adverse use. He stands upon the notoriety of the assumption that the original occupancy was permissive. In this he begs the question. There is no presumption available by which he may supply the existence of a conditional grant. A permissive user must color the initial occupancy by the county, and since the conditions under which it originally went into possession are not shown, defendant's proof of a permissive use is insufficient.
No original deed to the county is shown and if its existence should be supplied by the presumption of a lost grant, such presumption would not ex proprio vigore supply a deed with a reversionary interest. Defendant's claim of a use by permission is found to be a corollary of his claim to a reversion. Evidence of the practice in other school districts by which grantors have included reversions in their deeds to school lands was not relevant proof.
We hold therefore that the county's proof was sufficient to establish title by adverse possession. Russell v. Town of Hickory, 135 Miss. 184, 99 So. 897. The learned chancellor decreed title in defendant subject to use by complainant for school purposes only. We find insufficient support for such conclusion.
We may not concern ourselves over what is usually done and what was probable. The obstacles to defendant's complete proof may be insuperable. It is this very difficulty which is recognized in the doctrine of adverse possession and in our statute, and which here inures to the benefit of the party in possession.
Since the burden of establishing a permissive use was upon the defendant and none of his evidence is competent or adequate to this end, there is no cause to remand the case.
Reversed and decree here for appellant.