Thompson v. Felton

Adverse Possession—Statute of Limitations—Law of the Case—Notice— Definitions.—T. being in adverse possession of land, and having the same inclosed, leased it to O. Afterward the land was patented as part of a Mexican grant; and O. (without the knowledge of T.) attorned to M., the grantor of the defendants, and the owner of the land under the patent; M. having no knowledge of O.’s being in possession as tenant for T., and being informed by O., upon inquiry, that he was in possession for himself. Subsequently, and more than five years after the issue of the patent, O. surrendered possession to T., who was shortly afterward ejected by the defendants. In an action to recover the possession by T. (claiming to have acquired the title by an adverse possession for over five years subsequent to the patent): Held—following the decision of this Court upon a former appeal of this case—as follows:

1st. To constitute an adverse possession, the occupation must be open, visible, notorious, and exclusive, and must be retained under a claim of right to hold the land against the owner: and the owner must have knowledge, or the means of knowledge of such occupation and claim of right.

2nd. The possession of 0. was sufficient to put all persons upon inquiry as to the capacity in which he held; but M. having made the inquiry without success, was not affected with notice of his relationship to T.

3rd. Therefore, after the attornment of O. to T. (the latter having no notice, either actual or constructive, that the former held otherwise than for himself) the possession of T., through O. his tenant, was not.adverse, in a legal sense, to the title of M. and his successors.

Ib.—Id.—Definition.—To constitute adverse possession, there must be, not only an actual occupation, but also a claim of title hostile to that of the true owner. Held, accordingly, that it was error to instruct the jury to the effect that land was adversely possessed where protected by a substantial inclosure, or where it has been usually cultivated or improved; the definition, omitting the element of hostility, which is an indispensable constituent of adverse possession.

Ib.—Landlord and Tenant—Attornment—Law of the Case.—Thornton, J., concurring: The patent was issued in pursuance of the judgment of a court of competent jurisdiction, and O., in yielding to it, attorned in consequence of this judgment, which brought the case within the section of the Act of 1855, referred to in the former decision of this case (44 Cal. 508). But this Court,’ in that decision, on the same facts, held the attornment to be void, and this has become the law of the case.