Opinion
No. 19340
Decided March 9, 1926.
Real property — Disputed boundary — Expert testimony of civil engineers not incompetent — Section 2797, General Code — Adverse possession — Successive periods of occupancy may be united or tacked, when.
1. The expert testimony of civil engineers, to assist the court in deciding a controversy as to the location of a disputed line between adjacent lot owners, is not rendered incompetent by reason of Section 2797, General Code, providing that no resurvey by any person except a county surveyor, or his deputy, shall be considered as legal testimony.
2. Where there is privity between successive occupants such as grantor and grantee holding a strip of ground continuously and adversely, such successive periods amounting to over 21 years, the occupations may be united or tacked to each other to make up the time of adverse holding sufficient to ripen into a title by prescription to the land so occupied; other elements necessary to make prescriptive title being present. ( McNeely v. Langan, 22 Ohio St. 32, approved and followed.)
CERTIFIED by the Court of Appeals of Franklin county.
This case comes into this court upon certificate from the Court of Appeals of the Second Appellate District, finding that its judgment is in conflict with two judgments pronounced upon the same question by the Court of Appeals of the Fifth Appellate District, and that therefore the matter is certified to this court for review and final determination.
The facts out of which the controversy grows are briefly as follows:
Edward P. Zipf, the original defendant, is the owner of lot No. 49 in a certain subdivision in the city of Columbus, with house thereon, at No. 1243 Oak street, and Mary E. Dalgarn, the original plaintiff, is the owner of lot No. 50 in the same subdivision, with house, at No. 1249 Oak street. The lots, as shown on the plat, were originally 31 feet front by 137 feet in depth.
The plaintiff, Mary E. Dalgarn, purchased the lot in question owned by her from John Boyd and Edith A. Boyd on the 25th day of September, 1905, and has occupied the premises ever since that date. Said Boyd had owned the premises in question for more than three years theretofore.
The defendant, Edward P. Zipf, purchased the lot owned and occupied by him, to wit, lot No. 49, from one Simon Platt and wife, by deed under date of May 23, 1921, said Platt having purchased the property from one Martha C. Bruner, in 1909, who owned and occupied the premises in question from March, 1895, 14 years. At the time Martha C. Bruner purchased these premises it seems that there was a wire fence on the east side of her lot. This wire fence for some reason was replaced by a new one erected on the line of the old fence, it being claimed that the same post holes were used. This fence originally extended from the rear of the lot to Oak street. This old fence, it is claimed, was not upon the true lot line, but was some 16 inches over on lot 49. After the erection of the house on lot 50, which was built approximately in 1904 or 1905, the front end of the fence was removed and lattice or wing fences were built by the respective owners from the corners of their buildings up to the line fence, and no partition fence appears to have been maintained upon the property at the north or front end thereof, at least from the street line back to the so-called wing fences.
The controversy in the present instance arose by reason of Zipf placing a garage on the rear of his lot, upon the 16 inches claimed by the plaintiff, Mrs. Dalgarn, and the subsequent removal by Zipf of the fence extending from the back line northerly to the so-called lattice or wing fences, and the casting of the same over and upon the property of the plaintiff, Mrs. Dalgarn; whereupon Mrs. Dalgarn began a proceeding in equity in the court of common pleas seeking to enjoin Zipf from committing these acts and asking that the fence, which had stood upon the line claimed by her by prescriptive right for more than 21 years, be restored, and that so much of Zipf's garage as stood upon her property be removed. A temporary injunction was secured, and an answer was filed by the defendant, Zipf, which was in the nature of a general denial. Trial was had upon the issues tendered, the decree of the court was rendered in favor of the defendant, Zipf, and the temporary injunction was dissolved. Appeal was prosecuted to the Court of Appeals, which found that the plaintiff by adverse possession had acquired title up to the line of the old fence, which extended from the alley to a point between the two houses, where the lattice or wing fences stood; that the defendant wrongfully tore down said fence and moved his garage across the line. The court awarded to Mrs. Dalgarn the land in question up to the line of occupation from the rear of the lot to the point where the old fence torn away by the defendant ended, and from that point the court found that the dividing line should jog over to the true line on the front of the property, as established by the testimony of certain surveyors.
The case is certified as above noted and is before this court for determination.
Mr. H.B. Holmes, for plaintiff in error.
Mr. A. Ward Clutch and Mr. Warren E. Bigony, for defendant in error.
The Court of Appeals in this case found as a matter of fact that the plaintiff, Mary E. Dalgarn, had established by adverse use her right to the land lying east of the old partition fence extending from a point at the rear between said lots up to a point between the houses where the old wing fences, or lattice work, stood; that the dividing line from that point on to the north or front property line should jog over to the so-called true lot line as established by the testimony of the surveyors.
The Court of Appeals having reached its conclusion as to the prescriptive right upon the evidence adduced by both parties, and it being a matter which rests upon the weight of the evidence, and there being evidence in the record to support the conclusion of the Court of Appeals thereon, this court, under its rule, will not disturb the same.
There are, however, two law questions for determination on the record:
(1) Was it error to receive and consider the testimony of the surveyors or engineers?
(2) Could the prescriptive right of Mary E. Dalgarn rest upon the enjoyment thereof for the nineteen years in herself, tacked onto the period covered by the ownership of John Boyd, her grantor, making together more than 21 years of adverse possession?
As to the first proposition urged, both courts below received the testimony of the surveyors as to the location of the so-called true line between the property. The objection to this testimony is based upon Section 2797, General Code, which in substance provides that no resurvey made by any person except a county surveyor, or his deputy, shall be considered as legal testimony in any court, unless such surveys are made by mutual consent, or are made by order of court.
The general nature of this testimony was that there was a surplus of 3.9 feet between Wilson avenue and the west end of the Stewart and Jones addition, and that this was apportioned by the surveyors among the various lots going to make up the distance where the surplus occurred, according to frontage. The line as thus determined by the engineers the Court of Appeals found to be the true line, subject to the prescriptive rights of the parties.
The testimony of the civil engineers in question we think was rightfully considered by the court, as the testimony of any experts might be upon a question involving technical skill and experience. We see no error in the reception of such testimony, nor in the conclusion reached.
The second question invokes the doctrine of tacking, in establishing adverse possession or prescriptive right.
The rule is well stated in Thompson on Real Property, Vol. 1, Section 404:
"Successive adverse users by different persons may be tacked in order to make up the prescriptive period, provided there is privity or contractual connection between them, and there is no interval between the successive possessions during which the use was not adverse. Thus the term of enjoyment requisite for a prescription is deemed to be uninterrupted when it is continued from ancestor to heir, and from seller to buyer."
Thompson on Real Property, Vol. 3, Section 2527, recites:
"One person may start the adverse possession to land, and another in privity with him may continue it for the statutory period. Several successive periods of possession by different persons may be tacked or added to each other, provided the successive occupants are in privity of contract, estate, or blood, and the combined period of such adverse holdings will be deemed as one continuous possession for the statutory period. Privity that will permit the tacking of possessions exists between testator and devisee, between ancestor and heir, between landlord and tenant, between vendor and vendee."
And it is said in 2 Corpus Juris, at page 82:
"On the contrary it is a rule of almost universal application that, if there is privity between successive occupants holding adversely to the true title continuously, the successive periods of occupation may be united or tacked to each other to make up the time of adverse holding prescribed by the statute as against such title."
See, also, citations in 2 Corpus Juris, p. 82; Brumbaugh v. Gompers, 269 F., 472, 50 App. D.C., 130; Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E. 239; 1 Ruling Case Law, 717, Section 31 et seq.; Tiffany on Real Property, Vol. 2, Section 508.
Now, this record shows that the ownership was between the immediate grantor and grantee, and with no intervening possession, both parties continuing to enjoy and possess the property up to the old fence, apparently with the intention of making such property their own, and under such circumstances that if continued for 21 years the same would ripen into a title.
We think there was a sufficient privity between this grantor and grantee to justify the application of the doctrine of tacking. This has been heretofore recognized in this state in the case of McNeely v. Langan, 22 Ohio St. 32. The syllabus holds:
"The possession necessary to bar an action, for the recovery of real property, need not be continuous for the period of limitation in any one occupier. It is sufficient that the possession during such period was in the defendant and those under whom he claims; and, as to third persons against whom the possession was held adversely, it is immaterial, if successive transfers of the possession were in fact made, whether such transfers were by will, by deed, or by agreement, either written or verbal."
Entertaining the view that the possession and uses of Boyd, the grantor, may be tacked upon the uses and enjoyment and possession of Mary E. Dalgarn, the grantee, the Court of Appeals was correct in reaching the conclusion that such tacking was lawful, finding as it did, under the facts, the continued use of the property for over 21 years, with no intervening possession, the other elements going to make up title by prescription being shown by the requisite degree of proof; also its finding as to the so-called "true line" from the north side of the lots back to the lattice or wing fences, as established by the civil engineers, and thence with the jog over to the line of the old fence, established by adverse use, and the decree based thereon, are affirmed.
Judgment affirmed.
JONES, MATTHIAS, ALLEN, KINKADE and ROBINSON, JJ., concur.
I concur without reserve in the declarations of law contained in the syllabus in this case, but I dissent from the judgment reached, because I deny that those principles of law can properly be applied in any case involving real estate described as city lots without description by metes and bounds. In this case the judgment of the court takes from the party who holds title by deed a portion only of the lot and establishes an irregular line between the parties, where the deed called for a straight line. Under all the facts of this case, whatever line is established should in my opinion be a straight line. I cannot, therefore, concur in the judgment.