Deregibus v. Silberman Furniture Co., 121 Conn. 633, 186 A. 553, 105 A.L.R. 1183. Deregibus v. Silberman Furniture Co., supra note 3; Bayne v. Brown, 60 Or. 110, 118 P. 282; Holmes v. Turner's Falls Lumber Co., 150 Mass. 535, 23 N.E. 305, 310, 6 L.R.A. 283; Capps v. Merrifield, 227 Mich. 194, 198 N.W. 918. Elwell v. Barbrick, 279 Mass. 272, 181 N.E. 184; Capps v. Merrifield, supra note 4.
"It is true that the possession of the tenant may be the possession of the landlord, but the tenant cannot, without the direction or even the knowledge or consent of the landlord, effect a disseisin in his favor or originate adverse possession." Bayne v. Brown, 60 Or. 110, 112, 118 P. 282. In that case, the plaintiff, Mr. Bayne, sought to invoke the claim of adverse possession by tacking his purported adverse possession to that of Mrs. Strang who had sold to plaintiff premises adjoining the small strip of land in controversy.
It is true that it has been held in cases of this nature that the tenant's possession may be the possession of the landlord although the lease did not expressly include the land in question, where the landlord has represented to the tenant that such land was within the lease, or the landlord knew the tenant was occupying it and assented thereto, or there were other circumstances justifying the implication that it was occupied under and by virtue of the lease (Capps v. Merrifield, 227 Mich. 194, 198 N.W. 918), "but the tenant cannot, without the direction or even the knowledge or consent of the landlord, effect a disseisin in his favor or originate adverse possession." Bayne v. Brown, 60 Or. 110, 112, 118 P. 282. See also Doe dem. Smyth v. Leavens, 3 U. C. Q. B. 411; West v. Price's Heirs, 2 J. J. Marshall (Ky.) 380.
According to the evidence, no part of the property in dispute is now or ever has been occupied by any building or structure belonging to defendant or any grantor of hers, nor has it ever been enclosed, even in part, together with her own property by any fence or other barrier. Plaintiff and his grantors have always paid, and the amounts are substantial, all taxes and assessments for street improvements levied upon the entire lot, and according to defendant's own testimony, her claimed possession of the disputed property was temporary and occasional only, none of which, either separately or collectively were sufficient to indicate any claim of ownership upon her part, and it is not even pretended that she ever openly asserted any claim to the property whatever until shortly prior to the commencement of this action. As was said in Bayne v. Brown, 60 Or. 110 ( 118 P. 282): "A strong showing should be required to establish adverse possession of a portion of a city lot not occupied by buildings, as in such cases the boundaries of the lots are seldom conspicuously marked, and lines are not closely drawn until occasion arises to determine them accurately, and, unless mutually agreed upon or possession taken by barriers erected, the owner should be presumed to occupy to the true line".
It is unnecessary to restate what has already been well written. Among the many decisions of this court that may be consulted with profit are Gardner v. Wright, 49 Or. 609 ( 91 P. 286); Sommer v. Compton, 52 Or. 173 ( 96 P. 124, 1065); Talbot v. Cook, 57 Or. 535 ( 112 P. 709); Chapman v. Dean, 58 Or. 475 ( 115 P. 154); Bayne v. Brown, 60 Or. 110 ( 118 P. 282); Thomas v. Spencer, 66 Or. 359 ( 133 P. 822); Parker v. Wolf, 69 Or. 446 ( 138 P. 463); McKinney v. Hindman, 86 Or. 545 ( 169 P. 93, 1 A.L.R. 1476); Krueger v. Brooks, 94 Or. 119 ( 184 P. 285); Looney v. Sears, 94 Or. 690 ( 185 P. 925, 186 P. 548); Manning v. Gregoire, 97 Or. 394 ( 191 P. 657, 192 P. 406); Anderson v. Richards, 100 Or. 641 ( 198 P. 570); Westervelt v. Risley, 108 Or. 652 ( 218 P. 751); Cooley v. Henderson, 112 Or. 258 ( 228 P. 923); Phipps v. Stancliff, 110 Or. 299 ( 214 P. 335, 222 P. 328). This case is affirmed.
"If landlord authorize tenant to enter on certain tract of land, and he enter on other land, such entry does not invest landlord with possession of land, so entered on by tenant, without authority." It is also said in Bayne v. Brown, 60 Or. 110 ( 118 P. 282): "It is true that the possession of the tenant may be the possession of the landlord, but the tenant cannot, without the direction or even the knowledge or consent of the landlord, effect a disseisin in his favor or originate adverse possession."
[4] The use of the driveway by plaintiffs and their predecessors and their tenants without express permission amounted to trespass and afforded grounds for legal redress in favor of defendants' predecessors, and it was therefore sufficient to initiate a prescriptive title. [5] While it is well-settled that a tenant cannot originate adverse user in his landlord's favor, when his lease does not expressly or impliedly include the easement (28 C.J.S., 643, ยง 8; Holmes v. Turner's Falls Lumber Co., 150 Mass. 535 [23 N.E. 305, 6 L.R.A. 283]; Bayne v. Brown, 60 Ore. 110 [118 P. 282]; Umhau v. Bazzuro, 133 F.2d 356; Capps v. Merrifield, 227 Mich. 194 [ 198 N.W. 918]; Deregibus v. Silberman Furniture Co., 121 Conn. 633 [ 186 A. 553, 105 A.L.R. 1183]), [6] it is also settled that the user by the tenant does inure to the landlord's benefit if it is under a lease which expressly or impliedly includes the easement. ( Holmes v. Turner's Falls Lumber Co., supra; Deregibus v. Silberman Furniture Co., supra; Deregibus v. Silberman Furniture Co., 124 Conn. 39 [ 197 A. 760]; Holtzman v. Douglas, 168 U.S. 278 [18 S.Ct. 65, 42 L.Ed. 466].)
It could not be said that any act or trespass committed by any of the lessees who held Section 49 under the various leases executed by appellants' predecessors in title during the twenty-five years from 1902 to 1927 subjected the lessors or any of them to liability or exposed them to a suit for damages or otherwise, because the leases specifically described Section 49 and gave to the lessees no right or authority to enter upon any land not enclosed within its boundaries. If the lessees committed trespasses on other land, therefore, such trespasses were their own acts and constituted tortious conduct for which they alone would be liable. Holmes v. Turners Falls Lumber Co., 150 Mass. 535, 23 N.E. 305, 6 L.R.A. 283; West v. Price's Heirs, 2 J.J.Marsh., Ky., 380; Bayne v. Brown, 60 Or. 110, 118 P. 282; Capps v. Merrifield, 227 Mich. 194, 198 N.W. 918; Deregibus v. Silberman Furniture Co., 121 Conn. 633, 186 A. 553, 105 A.L.R. 1183. Under the law, as it is firmly established by the above authorities and many others that could be cited, we are forced to the conclusion that appellants were not entitled to recover upon the theory contended for by them.