Faulks v. Schrider (114 F.2d 587, 1940)

RUTLEDGE, Associate Justice.

The appeal is from a judgment of the District Court holding that plaintiff Francis J. Schrider, trustee, has title to disputed land by adverse possession and is therefore entitled to a condemnation award from the District.

The disputed tract of land may be designated briefly as lot 803. In 1893 it was part of a large tract known as “West Brook-land” held by Thomas Armat and John M. Comstock as trustees under a development project. By deed of July 27, 1897, Armat and Comstock conveyed parts of “West Brookland” (specifically, block 23 and lots 7 to 11 inclusive in block 22) to John M. Comstock, defendants’ predecessor in title. June 30, 1898, they deeded the rest of “West Brookland” (except for three earlier conveyances to other persons) to John A. Baker and John Maguire, trustees, plaintiff’s predecessors in title. All parties to the transaction apparently assumed that lot 803 was included in the deed to Baker and Maguire. From 1898 to 1911 the children of John Maguire farmed it. From 1911 to 1918 no one cultivated the property and it “grew up in weeds and briars.” In 1920, one Williamson rented it from Maguire and used it as a garden until 1928. Maguire permitted Williamson to construct a drive over part of the property. Plaintiff Schrider succeeded Baker and Maguire as trustee in 1926 and gave Williamson permission to continue his use of the property. Schrider attempted to sell the property. In 1932 he complained to a contractor because a cement mixer had been left on the lot, and in 1934 he ga,ve leases to three persons for parts of the land. The property was generally known, at least after 1920, as the “Maguire estate.” Taxes on lot 803 were paid regularly by Baker and Maguire from 1907 to 1925. The taxes for the second half of 1925 were not paid by Schrider until 1929 because of an error of the tax collector’s office, but otherwise the taxes were paid regularly until 1930. No taxes were paid from 1930 to 1937 but taxes for these years were deducted from the condemnation award.

In 1936 the Commissioners of the District brought condemnation proceedings for the purpose of extending Eighth Street, Jackson Street and Kearney Street, Northeast. As lot 803 lay in the path of the proposed improvements it was condemned and the jury awarded plaintiff about $5,000 as damages. Defendants then asserted title to the condemned land and claimed the award. The Commissioners therefore deposited the money in the registry of the court pending settlement of the dispute between the parties. Plaintiff brought this action March 11, 1937, to obtain payment of the award. The trial court first held that lot 803 was included in the deed to Baker and Maguire and that plaintiff therefore was entitled to the award. This court reversed that holding, remanding the case to determine whether plaintiff had title as a result of adverse possession. On February 20, 1939, the trial court made its findings of fact and conclusions of law and entered judgment for plaintiff, holding that plaintiff and his predecessors had obtained title by adverse possession.

Plaintiff contends that he has obtained title either under applicable common-law principles of adverse possession or under D’.C.Code (1929) tit. 25, § 2. As we think the statutory provision ,is controlling, we shall confine the discussion to it. The section reads: “In an action to recover vacant and unimproved lots of ground it shall not be necessary, in order to maintain the defense of adversary possession, to show that the premises in controversy had been inclosed; but if it appear that the property had been assessed for taxation to the defendant, or those under whom he claims, and that he or they had regularly paid the taxes on the same and were the only persons who had exercised control over the same for a period of fifteen’years, before the bringing of the action, such facts shall be the equivalent of possession by actual iriclosure.”

The testimony in the record that lot 803 was vacant and unimproved is not disputed. Defendants contend that this is not “an action to recover” such lots, that adverse possession is not being used as a, “defense,” that plaintiff and his predecessors. had not “exercised cphtrol” during the entire statutory period, and thqt plaintiff did not pay taxes fqr the “period of fifteen, years, before the bringing of the action.”

-I.

As to the first two'of these contentions,', we do not. believe that Congress intended to limit the substantive1 effects of the legislation to the specific procedural situation described in the statute. If adverse possession by, meeting the statute’s requirements could be proved only as a “defense,” the parties would be remitted to' physical combat with the stronger remaining in’ppss.ession of the disputed land and occupying the favored position of defendant in the 'ejectment action. Out of physical: possession,. the" adverse possessor would, be. compelled to prove ¿11' the elements of commonrlaw adverse possession; but by resorting to the aboriginal expedient of expelling his adversary he. would obtain ¿he benefit of the statute. We think Congress .did not mean to have one law of ad-: vprse possession for a defendant in eject-merit an,d another for all other parties and actions;, it simply stated the general statutory rule in terms of the party by whom and action' in which it would be used most frequently. Arid we think it makes no difference whether the action is to recover the land 'itself or only its present equivalent — its value represented by the condemnation award. It may be noted also • that the award of the jury iri the condemnation case was made to the plaintiff • here, and defendants made claim to the fund only after that award had been made. Although plaintiff filed this suit when the fund was paid into court and therefore is not technically “defendant” in a suit for “ejectment,” he more nearly occupies that position in respect to the substantive rights involved here than do the defendants on this record.

Defendants’ argument that the fifteen-year period must immediately precede the action is without merit. The statute says “a period of fifteen years,” and it of course refers to the applicable statute of limitations which would bar the action of other claimants, including the defendants here, upon the running of any fifteen-year period. Plaintiff’s predecessors paid taxes on lot 803' regularly from 1907 to 1925. As this is more than the requisite fifteen-year period, we need not consider whether payment in 1929 of the taxes for the second half of 1925. was .sufficiently “regular” to satisfy the requirements of the statute.

The questions remaining are: (1) whether, by making proof of certain facts “the equivalent of possession by actual inclosure,”' Congress intended to make them sufficient to establish title by adverse possession; and (2) if so, what áre the facts which are given this effect? The second question, stated differently, is whether, by enacting the statute- Congress intended merely to codify the existing law or perhaps to require the proof of facts in addition to those required to be shown by the preexisting common law or, on the other hand, intended to change the common law' by dispensing with proof of some of the facts previously ' required to be shown and requiring the proof of others.

II.

As to the first question, we think there can be no doubt that Congress intended to make proof of the facts specified by the statute sufficient for the creation of title by adverse possession. What is the effect of “possession by actual inclosure”? There are cases which apparently hold that inclosure alone, together with the necessary adverse intent, is sufficient for adverse possession. There is .some indication in the early, decisions of this court that inclosure alone might be con-' sidered adequate, though it was not required. It is well established that inclosure together with cultivation, pasturage or other use is possession. And where the land is inclosed, the courts seem not to have been insistent that the other acts of possession be shown clearly to have been continuous. Thus it might be held in the case at bar that “inclosure” alone or with the vaiious acts of dominion by plaintiff and his predecessors would establish title by adverse possession. But the statute makes proof of the facts which it specifies the equivalent, not merely of “inclosure,” but of ‘‘possession by inclosure.” It is therefore necessary to determine what Congress meant by that phrase.

Because much of the statutory and common law of the District is derived from that of Maryland, and especially because the statute now under consideration was drawn with a view to Maryland law, the meaning of the phrase “possession by actual inclosure” may best be ascertained by looking to the decisions of the Maryland court. Early Maryland decisions held that inclosure was essential to adverse possession. Apparently none of the Maryland cases held inclosure alone to constitute possession, but it is clear that “possession by inclosure” in the Maryland decisions means actual adverse possession. In Davidson’s Lessee v. Beatty, 1797, 3 Har. & McH., Md., 594, the court said: “Where a person claims by possession alone, without showing any title, he must show an exclusive adverse possession by enclosure, and his claim cannot extend beyond his enclosures.” (Italics supplied) Other Maryland cases confirm the conclusion that “possession by inclosure” had a well-defined meaning which embraced all of the pos-sessory elements necessary for adverse possession. It is to be assumed that this meaning was carried over to the statute by the inclusion of the phrase.

Furthermore, “possession by inclosure” on its face means more than mere “inclosure”; it also means “possession.” “Possession” for the'statutory period, by cultivation, pasturage or other means, is sufficient provided it is - open, notorious, continuous and adverse. The means of possession in the instant case is designated by the statute to be “inclosure,” but the result is plainly “possession.” That “possession by actual inclosure” means “title by adverse possession” seems incontro-' vertible from the fact that the statute relates to “an action to recover” realty, in which “in order to maintain the defense of adversary possession,” proof of inclosure is dispensed with and proof of the other facts enumerated is made the equivalent not only of “inclosure,” but of “pos~ session by inclosure,” especially when this is reinforced by the fact that the acts specified are of a character consistent only with a claim of ownership, whether or not they were previously sufficient to establish it. Prior to the statute it was settled that payment of taxes, even by a trespasser, was very significant evidence of adverse possession. Even if “possession by actual inclosure” required also proof that it was with intent to claim adversely, the clear purpose of the statute was to make proof of the specified facts not only the “equivalent of possession by actual inclosure” but also of that intention.

III.

It remains to consider briefly what, are the facts which, when proven, are to be given the effect prescribed by the statute. We have no doubt that it was intended to modify, not merely to codify, the previously existing common law in this respect. Otherwise, it is difficult to see that the Act had any purpose or fulfilled any need. It is not contended that the previously existing law was ambiguous or uncertain. In fact, the contrary is asserted and it is argued that we should apply that law here. Read literally and we think reasonably, the statute specifies that the prescribed effect shall be ’ given when the following facts are shown: (1) that the land is vacant and unimproved; (2) that for a period of fifteen years prior to bringing the suit, it' has been assessed to the claimant or those under whom he claims; (3) that he or they have regularly paid the taxes on it; and (4) were “the only persons who had exercised control over the same” during the fifteen-year period.

Except for the contention, rejected above, that the statutory period must immediately precede the beginning of the action, it is not questioned that any of these conditions has been fulfilled, except the last. It is said, however, that this in no way changes the previous law and is merely a restatement in statutory form of the common-law requirement' that the claimant prove continuous acts of ownership, other than the assessment to and payment by him of taxes, throughout the required period. This construction would not codify the common-law rule. It would add another requirement to those previously existing, if full effect is to be given to the statute. Proof would be required both of acts of dominion which were sufficient to create title by adverse possession under the common law and the assessment to the claimant and payment by him of taxes as prescribed by the Act. This would make of it a revenue-enforcing measure. We do not believe that was its purpose. Neither do we think it was intended to make the acquisition of title by adverse possession more difficult than it had been. previously. We think the obvious purpose, when the statutory conditions are otherwise fulfilled, was to dispense with the necessity for showing that other acts of dominion than assessment and payment of taxes have been continuous throughout the period, when no other person has exercised control within it. One who stands by for fifteen years, watching another pay taxes regularly on his property, paying none himself and not once in any way by word or deed asserting his claim, while the other does so by paying taxes continuously during the entire period, and in other ways though not continuously, is hardly in position to ask that the statute be construed to require more to divest his record title than was necessary prior to its enactment.

In this case it is unnecessary for us to do more than rule that the statute dispenses with the requirement that other acts of dominion by the claimant than the payment of taxes be continuous throughout the statutory' period, provided the other conditions specified are fulfilled. It might be argued that the language is susceptible of an even broader construction, but for the purposes of this case it is sufficient to hol