Opinion
June 2, 1916.
J. Henry Esser, for the appellant.
Ralph Polk Buell, for the respondent.
This appeal questions the adverse possession of land parcels which are surrounded by larger tracts. These strips, granted in 1872 for railway purposes, were not fenced off, and when the railroad project was dropped, appear to have been abandoned and discarded. The land then became used as portions of the surrounding farm tracts and returned to its original occupation. As a mere projected way it had not been fenced off; of course, it required no separate fencing when restored to its use as part of a larger field cultivated and pastured to its original limits, where the field was substantially fenced in. Such exterior fencing being kept up upon the entire inclosed lands became acts which might reasonably lead to the inference that the entire land, and consequently these strips, belonged to the same owners. Acts of enjoyment to prove possession of land cannot in the nature of things be confined to the precise spot in dispute. Evidence of acts in other parts of the inclosed lands may be received provided there is such a common character of locality between these parts and the spot in question as would raise a reasonable inference that the place in dispute belonged to the plaintiff if the other parts did. Hence, to prove title to a close, plaintiff may give in evidence acts of ownership within the same inclosure. ( Jones v. Williams, 2 M. W. 326, 331.) But in most of the United States such exterior boundary fences alone would not establish adverse possession of such separate interior strips. ( Doolittle v. Tice, 41 Barb. 181; 1 Cyc. 990.)
The findings specifically made as to tillage, cultivation and pasturage are affected by the proof of these visible boundary fences shutting in these entire tracts. They show an occupation not desultory and fugitive, but each tract as a single close held in undisturbed possession for purposes of ordinary farming; or, as the Code says (Code Civ. Proc. § 372), "usually cultivated or improved," showing actual appropriation and control extending over the entire tract.
During more than forty years there has been no other person claiming any right in these lands. The possession of defendant's predecessors was, therefore, exclusive and effective to exclude all persons from interfering with the occupier's use and enjoyment, so that the acts done within these substantial inclosures, with these fences, were marks of exclusive possession. A rocky abandoned railroad cutting lapsed into part of the surrounding farm lands. In order to show de facto possession the occupant is not called on to try to plow over such waste land if he is dealing with such spot in the ordinary manner that a farmer would use his own property. The Roman law also looked to the purpose of such occupation when applied to farm lands, declaring that it was sufficient to enter upon part of the farm with the purpose and intention to possess the entire farm to its boundaries. " Sed sufficit quamlibet partem ejus fundi introire, dum mente et cogitatione hac sit ut totum fundum usque ad terminum velit possidere." (Dig. 41, 2, 3.)
Such possession of agricultural lands is, therefore, a mixed question of law and of fact. On the findings here made as to cultivation, tillage, use and enjoyment, adverse possession under Code of Civil Procedure (§ 372, subd. 2) has been found as a fact, which finding is the stronger because, after 1872, the prior owner had left both these strips as derelict and vacant.
I advise that the judgment be affirmed, with costs.
JENKS, P.J., CARR and STAPLETON, JJ., concurred.
Judgment affirmed, with costs.