Mason v. Wolff

Tehple, J., delivered tbe opinion of tbe Court, Wallace, J., and CROCKETT, J., concurring:

Tbis action was brought under tbe Forcible Entry and Unlawful Detainer Act, against a tenant, to enforce a forfeiture for non-payment of rent. Tbe action is brought not only against Michael Wolff and Whiteman, tbe original tenants, but also against William H. Wolff and one Eyan, who, it is alleged, have entered into possession under tbe original tenants.

Tbe answer admits tbe lease, but denies that defendants, William H. Wolff or Eyan, entered under tbe tenants of plaintiff, or with their consent, but avers that they bold a portion of tbe premises sued for under an adverse claim. It denies that plaintiff is tbe owner of tbe property, and avers that Michael Wolff and Whiteman were in possession prior to tbe execution of tbe lease of a portion of tbe premises.

It appears from tbe evidence that tbe premises are partly upland, or land above high tide, and partly marsh or mud flat, wbicb is covered by high tide. Tbe whole tract consists of about two acres, about one half acre of wbicb is above high water. Upon tbis half acre were several buildings, among them a tannery, some of tbe vats of wbicb were upon tbe tide land. Tbe tract was inclosed on three sides, partly by fences and partly by a ditch. On the.remaining side was tbe Bay. Evidence was offered tending to show that at tbe time tbe lease was executed, William H. Wolff bad a bouse upon tbe marsh land, where be lived; that be inclosed a portion of tbe land, and kept upon it pigs and poultry; that Michael Wolff and Whiteman never bad any [248]occupation of tbe marsb land, or exercised anv acts of ownership over it, or bad any connection with William E. Wolff in bis possession and occupation. Tbe claim is that William H. Wolff held tbe marsb land under an independent claim, and is, therefore, not estopped by tbe lease to bis brother, Michael Wolff, and Whiteman. Tbe plaintiff claims that be was there as a member of tbe family of bis brother, or as an enroloye, and therefore bad no independent possession.

Tbe plaintiff introduced evidence to show that Mason bad possession of tbe half acre prior to tbe possession of Wolff and Whiteman, and bad previously leased tbe premises to one King, and also to one Garagon, and that Wolff and Whiteman entered by virtue of a purchase from King. Tbe lease to Garagon, as also that to King, were introduced in evidence. These leases were in terms for tbe one half acre of land only. Tbe plaintiff, being called as a witness on bis own behalf, stated that Garagon wanted tbe half acre for a tannery, and that be selected this half acre, and tbe lease was reduced to writing. After be bad selected this half acre, be (Mason) told him that be might extend bis possession over tbe tide land also. Tbe evidence does not show that Garagon entered upon tbe tide land in pursuance of this permission, or even that be fenced it subsequently to this lease. Tbe purpose of tbe evidence, evidently, was to extend tbe constructive possession of Mason beyond tbe lands described in tbe lease. Outside of tbe occupation of Garagon and King, it does not appear that Mason bad any claims to those lands whatever. Presumptively they belonged to tbe State, and neither Mason nor defendants can assert title to it unless they have acquired it by actual grant from the State. In view of tbe issue which bad arisen in tbe case, as to whether there was a separate bold-ing and a distinct possession of tbe marsb land, it became very material on tbe part of Mason to establish that Gara-gon held tbe marsb land as well as tbe upland as bis tenant. It is true this was not tbe direct point at issue, but it is contended that Wolff and Whiteman succeeded to tbe pos