Lessee of Ewing v. Burnet
36 U.S. 41 · Supreme Court of the United States · 1837
Facts
The plaintiff's lessor brought an action of ejectment in November 1834 to recover possession of lot No. 209 in Cincinnati. The legal title was originally in John Cleves Symmes. The plaintiff claimed through a deed from Symmes to Samuel Foreman in 1798, then to Samuel Williams in 1798, whose right vested in the plaintiff after his death. The defendant claimed by a deed to himself from Symmes in 1803 and an adverse possession of twenty-one years before the suit. The lot was primarily sand and gravel, not fenced, and its main use was for digging sand and gravel. The defendant resided across the street from the lot since 1804, paid taxes on it from 1810 to 1834, and claimed it as his own, exercising exclusive rights to dig and remove sand and gravel, granting and refusing permission, and bringing trespass actions. Samuel Williams, the plaintiff's predecessor, knew of the defendant's claim but never exercised ownership, though he declared his intention to claim it.
Issue
Was the evidence presented legally sufficient to establish adverse possession by the defendant, thereby barring the plaintiff's claim based on an older legal title? Did the lower court err in refusing to instruct the jury that the plaintiff was entitled to a verdict or that the defendant had not made out adverse possession?
Holding
The Court affirmed the judgment of the circuit court, finding no error in the lower court's refusal to instruct the jury that the plaintiff was entitled to recover or that the evidence was insufficient to establish adverse possession. The evidence was legally sufficient for the jury to find adverse possession.
Rule
To constitute adverse possession, visible and notorious acts of ownership must be exercised over the premises for twenty-one years, after an entry under claim and color of title. Neither a fence, building, nor actual occupation, cultivation, or residence is necessary, especially when the property is not susceptible of permanent useful improvement. The acts of ownership must indicate a notorious claim of property, be continued for the statutory period with the knowledge of an adverse claimant without interruption, and be adapted to the nature and situation of the property. An entry made under claim and color of right constitutes an ouster, and payment of taxes is powerful evidence of a claim of right.
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