
    JOHN G. KRUEGER v. EDWARD MARKET.
    
    January 23, 1914.
    
      Nos. 18,474 — (299).
    Adverse possession.
    1. 3?o establish title to real estate by adverse possession, such possession must be shown for the full statutory period of 15 years.
    Note. — As to the effect of abandonment on title to real property acquired by adverse possession, see note in 24 L.R.A. (N.S.) 1161.
    
      Same — insufficient evidence.
    2. To constitute adverse possession, the possessory acts must appear upon the land itself and be such as to indicate an intention to appropriate it permanently. Giving permission to a third party to cut hoop poles thereon and receiving pay for such poles is not sufficient to establish such possession.
    Same — payment of taxes.
    3. The payment of taxes, although evidence of a claim of title, is not evidence of adverse possession.
    Abandonment.
    4. A perfect legal title to real estate is never lost by abandonment.
    Action in the district court for Rice county to determine adverse claims. The facts are stated in the opinion. The case was tried before Childress, J., who found that plaintiff was the owner in fee simple of the premises described at the beginning of the opinion. From the judgment entered pursuant to the order for judgment, defendant appealed.
    Reversed.
    
      John F. Byers and S. B. Child, for appellant.-
    
      F. H. Gipson, for respondent.
    
      
       Reported in 145 N. W. 30.
    
   Taylor, C.

Plaintiff brought this action to determine adverse claims to the south half of the northeast quarter of the northeast quarter of section 1Y in township 110 of range 20, and other adjoining lands, all situate in the county of Rice, and alleged that he was the owner and in the actual possession of the same. Defendant interposed an answer, in which he admitted plaintiff’s possession, but set forth a complete chain of title to himself from the United States for the 20-acre tract above described; and alleged that he was the owner and entitled to the possession thereof, and asked judgment that he recover such possession. Plaintiff in reply admitted defendant’s chain of title, but alleged that he and his predecessors in interest had been in actual adverse possession of the land for more than 15 years before the commencement of the action. At the trial plaintiff relied solely upon the claim of adverse possession to establish his title. Defendant is the owner of the land, unless his title has been ■divested by such adverse possession. The trial court found as a fact that plaintiff and his predecessors in interest had been in tbe actual adverse possession of tbe land for more than 15 years immediately preceding tbe commencement of tbe action, and rendered judgment, decreeing that plaintiff was tbe owner in fee simple thereof and that defendant bad no interest therein. Defendant appealed from tbe judgment. The sole question presented is whether tbe evidence is sufficient to sustain tbe above finding.

Tbe land lies along the river and is of little value. Some seven or eight acres are steep, rocky bluffs, covered with brush and small trees not large enough for timber; and tbe remainder is low bottom-land, covered with sand deposits, intersected by bayous, and frequently overflowed.. It is used only for pasturage.

A tax-assignment certificate for tbe land was issued to A. D. Keyes on October 30, 1883, and was assigned by him to E. L. Erink and others, on November 28, 1885. Tbe claim of bis associates passed to Erink, and Erink deeded to John Dungay on December 24, 1896. Dungay deeded to Frank Sweet on April 27, 1897, and Sweet deeded to Frank Tetrault on September 14, 1899, and Tetrault deeded to plaintiff on December 31,, 1910. Plaintiff concedes that tbe tax certificate conveyed no title, but presented tbe certificate and tbe chain of conveyances thereunder to show tbe character and ■extent of bis claim, and to connect his possession with that of his predecessors in interest. Plaintiff and bis predecessors have paid tbe taxes upon tbe land since 1883.

Sweet testified that, between April 27, 1897, when he obtained bis deed, and September 14, 1899, a.hen be conveyed to Tetrault, be built some fence and cleared a portion of the land and used it for pasture. All that he states as to when these acts took place is that they were between tbe dates above given. From tbe time that Sweet ■entered thereon until tbe commencement of tbe action, tbe land was partially enclosed and used for pasture, and firewood was occasionally taken therefrom.

Tbe action was begun in February, 1911, and to establish adverse possession for tbe statutory period of 15 years, such possession must have been initiated as early as February, 1896, and more than a year before Sweet received bis deed. Frink testified that be never saw tbe land, but that while he claimed it, he gave permission to one Gile to cut hoop-holes thereon, and that Gile made some payments for such poles. He did not know when these poles were cut, nor how many were cut, and had no personal knowledge that they were cut upon this land. The testimony as to the cutting of these hoop-poles is the only evidence tending to show any possessory acts on the part of any of plaintiff’s predecessors prior to the entry upon the land made by Sweet; and the case is narrowed down to the question as to whether the cutting of these poles, coupled with the payment of taxes for many years, is sufficient to constitute an adverse possession which can be tacked to the adverse possession established by Sweet.

What constitutes adverse possession has been before this court many times and the rule is well stated as folloAvs:

“The general rules of law as to adverse possession are Avell settled. It must be actual, visible, and exclusive, as Avell as hostile. The doctrine proceeds upon the theory of the acquiescence of the true owner in his disseisin for the full statutory period; hence, the possession which affects him is Avhat appears on the ground itself. It must be such as would operate as unambiguous and unequiArocal notice to him that some one is in possession in hostility to his title under claim of right; and, while much will depend on the nature and situation of the property and the uses to which it is adapted, yet in all cases it must be a possession which is accompanied with the real and effectual enjoyment of the property, — the possession which follows the subjection of the property to the will and dominion of the claimant to the exclusion of others. The acts must be such as indicate that a permanent occupation and appropriation of the premises is intended, as distinguished from a casual trespass for some temporary purpose. And, inasmuch as it is only the possession which appears on the ground \Adiich affects the true owner, it follows that, while such acts as paying taxes or surveying lines may characterize a possession, if it exists, as hostile, yet they do not themselves constitute tbe possession which the law requires to toll the right of the true owner.” Wood v. Springer, 45 Minn. 299, 47 N. W. 811.
“The acts of the person in possession must be such as to indicate that a permanent occupation and appropriation of the premises are intended, as distinguished from a casual trespass or occupancy for some temporary purpose.” Glover v. Sage, 87 Minn. 526, 92 N. W. 471; Young v. Grieb, 95 Minn. 396, 104 N. W. 131; Gaston v. May, 120 Minn. 154, 138 N. W. 1025; Costello v. Edson, 44 Minn. 135, 46 N. W. 299; Wood v. Springer, 45 Minn. 299, 47 N. W. 811.
“The adverse possession which affects the rights of the true owner is what exists and appears on the land itself.” Hence the payment of taxes, although evidence of a claim of title, is not evidence of adverse possession. Murphy v. Doyle, 37 Minn. 113, 33 N. W. 220; Wood v. Springer, 45 Minn. 299, 47 N. W. 811; Young v. Grieb, 95 Minn. 396, 104 N. W. 131. To constitute adverse possession there must, at all times, be some person against whom the owner may maintain an action to recover possession. City of St. Paul v. Chicago, M. & St. P. Ry. Co. 45 Minn. 387, 48 N. W. 17.
“The mere cutting and removal of timber or fuel or natural grass from unoccupied land have not generally, and under ordinary circumstances, been regarded as constituting adverse possession.” Costello v. Edson, 44 Minn. 135, 46 N. W. 299; Bazille v. Murray, 40 Minn. 48, 41 N. W. 238; Washburn v. Cutter, 17 Minn. 335 (361); McRoberts v. McArthur, 62 Minn. 310, 64 N. W. 903.

In the present case it is obvious that the cutting of the hoop-poles by Gile was not for the purpose of improving the land or preparing it for use, and did not differ in kind from the act of any trespasser who should appropriate to his own use some of the natural products growing thereon. Furthermore, so far as the evidence shows, the last of this cutting may have occurred many years before Sweet took possession. The evidence is wholly insufficient to establish adverse possession at any time prior to the entry upon the land made by Sweet, and, as plaintiff must show such possession for the full statutory period, he has failed to establish title.

The suggestion is made that, as defendant had failed to pay taxes for nearly 30 years, he had abandoned the land, and upon that ground should be barred from now asserting title thereto. A perfect legal title to real estate may be divested by adverse possession under and by virtue of the statute of limitations, but is never lost by abandonment. Smith v. Glover, 50 Minn. 58, 75, 52 N. W. 210, 912; Nauer v. Benham, 45 Minn. 252, 47 N. W. 796; Mayor, etc. of Philadelphia v. Riddle, 25 Pa. St. 259; Kreamer v. Voneida, 213 Pa. St. 74, 62 Atl. 518; East Tennessee Iron & Coal Co. v. Wiggin, 68 Fed. (C. C. A.) 446, 15 C. C. A. 510; Tennessee Oil, Gas & Mineral Co. v. Brown, 131 Fed. (C. C. A.) 696, 699, 65 C. C. A. 524; Barrett v. Kansas & T. Coal Co. 70 Kan. 649, 79 Pac. 150; Sharkey v. Candiani, 48 Ore. 112, 85 Pac. 219, 7 L.R.A.(N.S.) 791; Robie v. Sedgwick, 35 Barb. 319; Calloway v. Sanford, (Tenn. Ch.) 35 S. W. 776, 778; 23 Am. & Eng. Enc. (2d ed.) 940.

Judgment reversed.  