
    ADVERSE POSSESSION — FENCES—LIMITATION OF ACTIONS.
    [Lucas (6th) Circuit Court,
    October 30, 1905.]
    Haynes, Parker and Wildman, JJ.
    S. Belden E. Seese v. Maumee (Vil.).
    1. Fences Sufficient to Exclude Public Travel will Create Adverse Possession, even if not Kept in Repair.
    If the public is entirely excluded from the use of a street for a period of twenty-one years, it will make no difference how frail or unsubstantial the barrier may be that caused such exclusion; hence fences sufficient to turn stock, and to prevent travel along a street except by pedestrians, and in their case only by their climbing the barriers, will be sufficient to constitute such adverse possession, even though it appear that the fences were at times greatly decayed and out of repair.
    [For other cases in point, see 1 Cyc. Dig., “Adverse Possession,” §§ 129-188; 4 Cyc. Dig., “Fences,” §§ 92-95; 5 Cyc. Dig., “Highways,” §§ 340-344; 6 Cyc. Dig., “Municipal Corporations,” §§ 2228-2240. — Ed.]
    2. Principle that Limitations does not Run in Favor of a Nuisance not Applicable to Case of Complete Adverse Possession.
    The general principle that the statute of limitations will not bar public authorities from removing a nuisance for the street applies to a case where such authorities maintain their rights therein and one undertakes to obtain an easement by the erection of a nuisance; but this doctrine will not be extended to a case where one, by a fence or other structure, has entirely excluded the public from the street.
    [For other cases in point, see 5 Cyc. Dig., “Limitation of Actions,” §§ 99-103, 155-156. — Ed.]
    3. Provisions of Statute of Limitations may be Resorted to .Affirmatively in Action to Quiet Title.
    While the provisions of the statute of limitations relating to real actions Rev. Stat. 49-77; Lan. 8492), are designed to be used defensively, they-may nevertheless be taken advantage of in an action by plaintiff to quiet title.
    4. Mere Statement that Land Adversely Held “is a Street” will not Prevent the Operation of the Statute of Limitations.
    Statements by a party that certain land in his adverse possession “is a street” are not sufficient to estop him from setting up the statute of limitations in his favor as against the municipality, nor to arrest the running of the same.
    [For Other cases in point, see 5 Cyc. Dig., “Limitation of. Actions,” §§ 579-581. — Ed.]
    Appeal from Lucas common pleas court.
    H. H. Sanderson, for plaintiff.
    L. W. Murphy, for defendant:
    To constitute adverse possession there must have been an intention on the part of the person in possession to claim title, and so maintained by his declarations or his acts. Lane v. Kennedy, 13 Ohio St. 42-46; Ashley v. Toledo, 5 C. D. 675 (13 R. 1).
   PARKER, J.

The plaintiff began his action in the court of common pleas of this county on October 2, 1903. It is in the nature of an action to quiet title to certain tracts or strips of land that were at one time laid out .as streets in the village of Maumee, in this county. From the judgment of the court of common pleas in the case, an appeal has been taken to this court and the case has been tried before us. The plaintiff says in his petition that he is the owner of lots 1, 2, 3, 4, in block No. 9, and lots 1, 2, 3, 4, 5, 6, in block No. 10 and water lots Nos. 6, 7, 8, 9, 10 and 11 of that village; that all of these lots are in Wolcott’s addition to the village of Maumee, Lucas county, Ohio. It appears that the lots mentioned in the blocks named comprise the whole of these 'blocks 9 and 10 and that these blocks lie upon the south side of one of the main streets of the village, called Wolcott street; that this street is sometimes called the river road, sometimes Detroit avenue. It runs ■east and west by these premises, and these lots lie between this street ■and the Maumee river. The water lots lie south of blocks 9 ‘ and 10, being separated therefrom by Water street. Johnson street, a part of which is in dispute here, lies between blocks 9 and 10, block 9 being on the upper or west side and block 10 'being on the lower or east ■side of this street. The dedication of the plat in which these lots are described and in which these streets are dedicated by Mr. Wolcott occurred in 1837. It has been said that this action is brought by the plaintiff under favor of Rev. Stat. 4977 (Lan. 8492), more especially the part of that section which was added by amendment in 1889. But it is contended on behalf of the village that the action is not maintainable under these provisions of the statute, because these streets were at ■one time open and the statute applies only to cases where streets have not been opened.

It is perhaps inaccurate to speak of the case as being brought under the statute at all. The statute does not provide for any actions or any remedy; it is a part of the statute of limitations and it provides primarily for a defense. These provisions added in 1889 applied specifically to streets, and seemed to provide the results of certain actions with respect to streets, that is to say, the effect of fencing up certain streets. While, as I have said, we deem it inaccurate to speak about the action as having been brought under any of the provisions of this section, yet the result of adverse possession for twenty-one years, under certain circumstances, is to give to the possessor a title and the -question we have to consider is whether under any of the provisions of this section, the plaintiff has such title as that he may maintain an action to quiet title, or may resist a claim to the streets made on behalf of the village.

I shall not stop to read the section, but will say that we entertain very serious doubts whether the plaintiff has brought himself within the provisions of this amendment to the statute made in 1889; that is to say, we question very much whether this part of the' statute applies to eases where streets have been opened; and we find in this case that in pursuance of an ordinance for the improvement of these streets, passed May 29, 1843, these streets were opened; we find, the preponderance of the evidence is to. that effect; that is to say, that sufficient was done by, and on behalf of, the village to amount to the opening of the streets, though we do not believe that the streets were improved as provided by that ordinance; but that sufficient authority was exercised over the streets and sufficient use was made by the public to amount to an opening of the streets.

The ordinance provided for the grading of Water street, which runs in an easterly and westerly direction at this point between Wol-cott street and the river, and it appears that at about this point there was some grading done upon what was supposed to be Water street,, some leveling up to make it passable by teams. But we find that whatever was done with respect to the attempt to improve Water street was not done upon what was actually Water street at all; that Water street, in fact, was in such position on the bank of the stream, the side of the bill forming the upper bank, that it could not be traveled over with teams, and that the teaming that was done, according to the testimony of witnesses, must have been done upon these water lots between Water street and the river; and it is very evident to us that there was never any teaming done over Johnson street between Wolcott street and the river. We are entirely satisfied upon that point.

The ordinance in question provided for the improvement of Tap-pan street which was along the east side of block 10 extending from Wolcott street down to Water street, so that it might be traveled by teams; the ordinance provides specifically for that, and it provides for the improvement of Water street to the westward as far as Forrer street; and it seems entirely clear to us from the testimony of witnesses that whatever was done by way of improving the street so that teams might travel from Wolcott street down to Water street, was done upon ' Tappan street. Indeed it appears from the testimony that in early times, there were some docks built in this vicinity, some in the immediate vicinity of these water lots, some further east and that there was considerable traffic here; there was some boat buildings, etc., and occasion, for people to go'-up and down the banks and to do hauling up and! down there. But that all seems to have come to an end about the mid-' die of the last century and the traffic ceased, and the docks and whatever improvements there were in that vicinity were allowed to go into disuse and decay, so that there is very little, if anything, now evidencing such former occupation and use.

Now, notwithstanding the fact that the plaintiff’s case may not come within the provisions of this amendment to this section, because of the streets having been opened up, we think it is entirely clear under the authorities that one may obtain a title to streets, which have been regularly laid out and opened, by adverse possession, to the exclusion of the public for a period of twenty-one years, and the question that we have considered and that we shall pass upon is, whether there has been such use and occupation of the predecessors in title of-Mr. Seese as puts him in the position where he may have his title quieted to the parts of Johnson street and Water street which are in controversy.

In certain of the earlier cases, i. e. Cincinnati v. Presbyterian Church, 8 Ohio 298, 299 [32 Am. Dec. 718]; Williams v. Presbyterian Soc. 1 Ohio St. 478 and Cincinnati v. Evans, 5 Ohio St. 594, the doctrine appears to have been recognized that title to parts of streets might be acquired by adverse possession. It has been said in later eases with respect to these holdings that while the judgments were right, they should have been put upon the ground that the city was estopped from claiming the parts of streets occupied by private structures, and there seems to be good reasons for this contention; and, if in cases like this, the city might be estopped, it is apparent that it would not require a period of adverse possession of twenty-one years in order that the estoppel might be effective; the estoppel might be effective in a very short period of time; the twenty-one years period would have no influence upon that question at all; at least it would not have a controlling effect. These earlier cases are reviewed by our Supreme Court in several late cases: and I call attention especially to the case of Heddleston v. Hendricks, 52 Ohio St. 460 [40 N. E. Rep. 408], where they are reviewed by Chief Justice Minshall, and I cannot do better in discussing these earlier cases' than to read what Chief Justice Minshall has said about them. I read from page 465:

“The general rule is, that the statute of limitations does not apply as a bar to the rights of the public, unless expressly named in the statute; for the reason that the same active vigilance cannot be expected of it, as is known to characterize that of a private person, always jealous of his rights and prompt to repel any invasion of them. But in the cases of Cincinnati v. First Presbyterian Church, 8 Ohio 298, and of Cincinnati v. Evans, 5 Ohio St. 594, a different rule was applied; and, in the first ease, the right of the city to a portion of its public square, occupied by the church, and, in the other case, its right to be a portion of one of its streets, encroached upon by the building of the defendant, a private person, was, in each case, held barred by an adverse possession of twenty-one years. But these cases are regarded as exceptional; and confined to municipal corporations in cases where their possession has been disturbed by the erection of large and valuable •structures under such circumstances as, preclude the idea that the encroachment was simply permissive on the part of the municipality. 'Thus, in Lane v. Kennedy, 13 Ohio St. 42, where a landowner extended his fences so as to include a portion of the highway, not then used nor needed for the public travel, and continued the same for twenty-one years without any objection, it was held that such partial encroachment was not necessarily adverse to the public, nor inconsistent with its easement, and, therefore, constituted no bar to its reclamation by the supervisor, when required by the public travel. The encroachment in this case was upon a highway within the town of Oxford, and which then formed part of one of its street. And Peck, J., in distinguishing the case of Cincinnati v. Evans, observed that, ‘by a reference to the facts therein stated, it might with equal, if not greater propriety, have been placed upon the ground of an estoppel in pais on the part of the city authorities; the building having been located by the city surveyor and upon lines previously established and built upon.’ Again, it is held in McClellan v. Miller, 28 Ohio St. 488, that an encroachment on a highway regularly laid out and established, by putting up a fence or planting a liedge within the established limits, does not constitute such adverse possession as will confer title. After reviewing the' previous cases, Wright, J., said: ‘When roads are laid out and travel is limited, necessity may not require that the whole width should be opened when a less quantity answers every purpose. But the fact that a portion of the highway remains in the possession of adjoining owners, is merely a matter of sufferance, from which rights cannot accrue. If, as in 5 Ohio St. 594, such proprietor should erect permanent- improvements upon the ground in question, indicating an intention permanently to appropriate the land, a question of adverse possession might arise. ’ He then adds: ‘A fence is not such permanent improvement. Nor does the fact that a hedge was planted, vary the ease. The public have a mere easement for the road. The proprietor still owns the fee, and may use it in any way not inconsistent with the purposes' of a road. He may plant trees; he is entitled to the herbage; and the setting out of a hedge entirely comports with his own rights, while it does not conflict with those of the public.’ ”

And there is a further discussion of the matter. Now counsel for the village insist that what is here said about fences, hedges, and the like is clearly applicable to the case at bar, because the only obstruction that was placed across these streets by the owners of these lots was by way of fences across Johnson street on the line of Wolcott street, and by way of a fence at either end of that part of Water street which traverses the southern boundary of blocks 9 and 10.

But a study of this ease and others discloses a marked difference between an encroachment upon a street by a partial occupation thereof by the construction of ordinary structures, (not permanent, as in the Cincinnati case,) and an entire exclusion of the public from the streets; and we think that where the public is entirely excluded from use of the street for a period of twenty-one years, it makes no difference how frail or unsubstantial the barrier may be that excludes the public, that it is not necessary to exclude them by a permanent structure; it is sufficient that the public is excluded. We think that this distinction was lost sight of by Judge Caldwell when he came to decide the case of Wright v. Oberlin, 13-23 O. C. C. 509, and Morehouse v. Burgot, 12 Circ. Dec. 163 (22 R. 174), but that the distinction was recognized in the case of Mott v. Toledo, 7 Circ. Dec. 216 (17 R. 472).

We conclude that the evidence supports the • contention of the plaintiff, that the public has been excluded from the use of these streets by the fence across them at the points I have described for a. period of more than twenty-one years before this action was begun. Mr. Darmstadt became the owner of the premises by a tax title about 1867, and it seemed that he went into the occupation of the premises about that time; his title was perfected by "deed in 1873, but the testimony shows that he built a fence along the line in front of blocks 9 and 10, along the south line of Wolcott street and across Johnson street at that point, as early as 1870, and that about that same time he built a fence from the northeast corner of block 10 down to the' river, thereby crossing Water street, and from the northwest corner of block 9 down, to the river, thereby crossing Water street. The first fence he built appears to have been substantially around block 9, according to the testimony of some of the witnesses, the other fence was built a few months later, according to the testimony of other witnesses, a year or two later.

But we are convinced from the testimony that from about the year 1870 until a year or two before the beginning of this suit, these fences were maintained continuously, though at times they were decayed and ' out of repair, yet they were kept in condition so that they would turn stock at any time and so that the public could not use these streets for traffic, and could not pass upon these streets as foot passengers, otherwise than by passing through the barriers by way of a gate, part of the time, and by way of bars part of the time, erected by Mr. Darmstadt as a part of his fence across Johnson street. Upon the south line of Wol-cott street, upon Water street, there was no way of getting by the ffence other than by climbing over it or under it. The fence would turn stock. This first fence,- which as I have said was built substantially around block 9, does not appear to have conformed to the line of block 9 upon the south, but it went far enough south at the east end to take in about half of Water street; it was then continued in a westerly direction to about the south side of Water street, or within about a foot of that point, where it joined the fence leading from Wolcott street to the river, so that this fence at the west end took in all of Water street but about one foot: Perhaps it left no obstruction, for a while, to that part of Water street which had been used by the public in earlier times, or I should say that part .of the territory which was supposed to be Water street and so used by the public in early times, to wit. the water lot line of travel on the level land.

Upon the proposition that this amendment to Rev. Stat. 4977 (Lan. 8492) probably does not apply to the ease at bar, I meant to state, and will now cite the case of McClelland v. Miller, 28 Ohio St. 488, 489 and Grove v. Graham, 41 Ohio St. 303 and this case of Heddleston v. Hendricks, supra, which come under Rev. Stat. 4668 (Lan. 7960), a section applicable to county roads that have not been opened and similar in its provisions or its general scope and purpose to this amendment to Rev. Stat. 4977 (Lan. 8492). It was held in those cases that the statute applied only to roads that had not been opened at all. But the first clause of Rev. Stat. 4977 (Lan. 8492) applies as well to streets as to cases where the ownership or right is claimed by municipal corporations, as to other territory, where the claim is made by private proprietors. The clause which I refer to is, “An action for the recovery ■of the title or possession of real property, can only be brought within twenty-one years after the cause of such action accrues,” and while, as .1 say, that was intended to be used defensively — provides a defense— it results, when an action is brought like this to quiet title, and claim to the property is made on behalf of another, that it may be used in support of the cause of action of the plaintiff.

It is contended by counsel for the village, as we understand it, that this fence was in the nature of a nuisance prohibited by statute, and that there is no statute of limitations under which one may claim a right to maintain a fence;.that no length of time will bar the public authorities from proceeding to remove the nuisance from streets, and, that being true, it must" result that there is no bar to the right of the city here to claim these streets and to ask for the removal of these fences. We are cited to the case of Little Miami Ry. v. Greene Co. (Comrs.) 31 Ohio St. 338. It appears that that was a case in which the railroad company was permitted to encroach upon a public road under an agreement which contained the condition that the road was to be restored to its former state or in a sufficient .manner not to impair its usefulness, and it was held that under this agreement and arrangement, the public authorities had the right to require the removal of the obstruction; that it did not authorize the company‘permanently to appropriate any portion of the public highway, by the obstruction. Now in the course of the discussion in this ease, reference was made to the law upon the subject of public nuisance. We take it that principle applies in a case where the authorities maintain their rights in a street or to a street and one undertakes to obtain an easement or a right therein by erecting a nuisance, .and not to a case where one, by a fence or other structure, entirely excludes the public from the street; that the public’s right to a street and "the public’s rights in a street are two different things. Where the public claims its thoroughfare, maintains its rights to its thoroughfare, one may not, by transgressing upon the limits of that street by an unauthorized obstruction, defeat the right of the public to have that obstruction removed. There is another case upon this subject, where one claimed an easement in the street by reason of certain pipes erected along and under the surface of the street. These pipes were destroyed by the construction of a sewer. — This is the case of Eister v. Springfield, 49 Ohio St. 82, 92 [30 N. E. Rep. 274], and there this doctrine was enforced. But we understand it to be well settled that where the public is entirely excluded from the use of the street, where the whole street is occupied by one using it adversely,, claiming it adversely to the public, that the public may lose its right in the street and to the street altogether.

It is urged on behalf of the village here that this use of it, even if it has been for a period of twenty-one years, has been permissible, or that the rights of the village had been recognized by the Darmstadts, who fenced up the street and used it, and emphasis is laid upon by the testimony of Mr. Wagner, who says that the elder Darmstadt, through whom this later proprietor claims, in 1889, said to him, pointing to the part of the street‘which was laid out as .Johnson street, “That is a street.” It appears that that was fenced in at the time, and fenced in as part of block 10, and the fact that it was fenced in with block 10 is what called for the question upon the part of Mr. Wagner, that brought this response from Mr. Darmstadt, that it was fenced in and had a gate leading from Wolcott street. Part of this was cultivated and this part which had beep Johnson street was uncultivated. Mr. Wagner inquired of Mr. Darmstadt why this was that he kept it in that rough uncultivated condition and Mr. Darmstadt.said that was a street.

Well, now, what effect is to be given to that? As a matter of fact it was fenced up; the public could not use it for travel at all, excepting foot passengers, and those must use it by the gate or pair bars or climb the fence that had. been constructed there by Mr. Darmstadt. The whole subject of such declarations made by an occupier is very fully discussed in the case of McAllister v. Hartzell, 60 Ohio St. 69 [53 N. E. Rep. 715]. I cannot take time now to read much from .this case, but most all of what is said in the opinion of Judge Spear upon the branch of the case which involved declarations of the occupier is applicable to the case at bar. What Mr. Darmstadt said upon this subject at this time was quite proper. In a sense that was a street; it had been regularly laid out and platted as a street; and yet he might have mentioned it as .such street as he was using as a lane for his cattle down toward the river at this point. There is much testimony tending to show that part of the land that was fenced up was much narrower than the street as laid out, that the fences leading toward the river at this point were not more than eight or ten feet apart; and this must have been so part of the time that it has stood.there; at other times they were as much as fifty feet apart, yet the street itself was sixty feet wide. But these declarations did not amount to an acknowledgment upon the part of Mr. Darmstadt that he did not hold it adversely; it did not amount to ' an acknowledgment upon the part of Mr. Darmstadt that the public had a superior right to that than he; and Mr. Darmstadt may not have appreciated at that time the fact that he had occupied it so long that he might successfully deny the right of the public to any use of the street.

Now I will read the first clause of the syllabus in this case of McAllister v. Hartzell, supra:

“Where the statute of limitations is interposed in an action of ejectment, and it is shown that the original seizure was a disseizin, any subsequent act or declaration of the claimant, or his predecessor in title, which does not estop the claimant to plead the statute, nor suspend the right of the holder of the title to prosecute an action to recover possession, will not be sufficient‘to arrest the running of the statute. Neither a mere offer to buy within the twenty-one years, nor an acknowledgment by the claimant within that time that the title is in another, or that the claimant does not own the lands, will have that effect. ’ ’

Mr. Darmstadt did not say so much as is covered by this decision; he did not offer to buy; he was not talking to any representative of the village; he did not acknowledge the ownership, of the village; he did not say that he did not own it himself. As I say, this matter is discussed very fully by Judge Spear in this ease, and I will read part of the opinion found on page 93.

But first I will refer to the case, of Drayton v. Marshall, 1 Rice Eq. (S. C.) 373 [33 Am. Dec. 84], and will read what the holding in that ease was, from page 386:

“It is believed that no case can be put, in which a man knows that another claims and is in enjoyment of what belongs to him, where there is nothing to prevent his doing so, that he will be barred by the statute.”

Now speaking of this case, Judge Spear says, on page 93:

“We are of the opinion that the principle announced in Drayton v. Marshall, supra, is a just one, that it is applicable to the facts of this ease, and that the rule should be, that where it is shown that the original seizure was a disseizin, no subsequent act or declaration of the claimant should be held to toll the statute which does not deprive the holder of the title of his right to prosecute his action to recover possession, or suspend the same. This is a simple, easily understood test, and we believe is not only within the letter, but clearly within the spirit,- of the statute. Applying this rule' to the case at bar, it is clear that neither the mere offer to buy, nor the acknowledgment of the claimant that the title was in another, or that he did not own the land, is sufficient to suspend the running of the statute. Such acts and declarations raise no conclusive implication that the claimant intends to attorn to the ■holder of the title, or yield the possession.”

Here we find that the public was excluded; we find that this is an act which, in the absence of any evidence of permission given by the public, is unequivocal; it speaks louder than words; that it disclosed a purpose to use this to the exclusion of the public. If the public submits to such exclusion for a period of twenty-one years, we hold that it may not thereafter assert successfully a claim to the street. Upon the whole, we conclude that the decree should be for the plaintiff, quieting his title.

Haynes and Wildman, JJ., concur.  