
    State of Ohio v. Griftner.
    
      Canal lands — Title to, acquired by state —• Remains after state ceases to use — Act of February 4,1825 — Statute of limitations does not run against state — Lands leased by claimant with no title — Rights of state and tenant— Tax sale of state lands.
    
    
      1. The title acquired by the state to lands which it appropriated and used in the construction and operation of canals under the act of February 4, 1825 , 23 O. L., 50, is a fee simple, and the former owners of such lands, by reason- of such appropriation, parted with all their title and interest in such lands.
    2. The fee simple title to such lands remains in the state after it ceases to use such lands for canal purposes, and the statute of limitations does not run against the state as to such lands.
    3. When such lands are leased by a claimant who has no title, to a tenant who takes possession, and the state thereafter leases the lands to the same tenant, and he pays rent to the state and refuses to pay rent to the claimant, the possession of such tenant is the possession of the state, and it may maintain an action against such claimant to quiet its title.
    4. The rule that a tenant cannot dispute the title of his landlord, does not in such cases have the effect to prevent the state from obtaining actual possession of its lands by means of a lease to the tenant of a claimant who has no color of title.
    5. A tax sale of lands belonging to the state is void, and confers no right to the lands upon the purchaser.
    (Decided November 28, 1899.)
    Error to the Circuit Court of Warren county.
    The State of. Ohio by the Attorney General, brought its action in the court of common pleas of Warren county to quiet its title to a certain lot of lands in the village of Franklin in said county, and forming a part of what is known as the Great Basin of the Miami and Erie canal. The petition averred that the state was the owner in fee simple and in actual possession of said lot of land, and that the defendant claimed an estate and interest therein, and averred that the defendant had no estate or interest in the lands, and prayed that the title of the state be quieted.
    The answer denied that the state was in possession of the lands, denied that the state had title to the lands, and set up a tax title and deed thereunder at delinquent tax sale.
    The reply denied all the new matter in the answer.
    In the court of common pleas a decree was rendered in favor of the state, and the cause was taken on appeal to the circuit court, and upon trial in that court the decree was against the state, and in favor of the defendant in error.
    The circuit court made a finding of facts separate from its conclusions of law as follows:
    
      “CONCLUSIONS OF FACT:
    “That this is an action to quiet title to real estate; that the real estate in question is situated in Franklin, Warren county, Ohio, and was formerly known as the Great Basin; that in the year 1828 the Miami and Erie canal was built through said Franklin, Warren county, Ohio, and that said land in said year was by the State of Ohio, plaintiff herein, without any grant of title or proceeding in condemnation, flooded with water, and the same was thereafter for several years used by the state for canal purposes as a part of the said Miami and Erie canal; that the State of Ohio flooded said basin with water from said canal for the full length of said basin; that there was no obstruction or barrier existing between said canal and basin; that the water from said canal flowed freely from said canal into said basin for the full length of said basin; that the plaintiff herein, the State of Ohio, used said basin property for canal purposes for years thereafter; that said plaintiff used said basin all of said time in connection with said canal, for turning its boats and canal boats in use and traversing said canal. That during a period of said time said state cleaned out said basin and removed the mud and earth therefrom to keep it navigable for, boats traversing said, canal. About the year 1848 the State of Ohio ceased to use said land in question and described in the petition for canal purposes, and the grantors of defendant, who before the state had so used the said land, owned the same, took possession thereof, claimed to be the owners thereof and erected buildings thereon and used said land until 1886, when the land was leased by one William H. Squires, who had acquired the title thereto of said original owners, to P. P. Maxwell, for one year with the privilege of five years. This lease expired in July, 1891, but said Maxwell did not yield possession of said land to said Squires, grantor of defendant, but acquired a lease from the State of Ohio for said lands for a period of fifteen years, while said Maxwell was holding the same as the tenant of said Squires, and has paid rent to the State of Ohio since November, 1890.
    “In 1890 the State of Ohio by its Board of Public Works and Canal Commissioners, caused said land to be surveyed and platted, and claimed to be the owner thereof, and asserted title thereto, and in August, 1890, duly executed and delivered to said P. P. Maxwell a lease for said lands for a period of fifteen years from that date, while he was holding under said lease from Squires and as his tenant, and said Maxwell has remained in possession of said land ever since, and has refused to pay rent to said Squires or the defendant herein, but since November, 1890, has paid to the State of Ohio rent for the premises according to the terms of its said lease to him. And the court further finds that the only right or claim of the state to the possession of said premises is by virtue of the possession of Maxwell. In May, 1894, said William H. Squires executed a deed to the defendant, Charles H. Griftner, for said land.
    “And the court further find that the plaintiff in this case, the State of Ohio, had, at the commencement of this action, no possession of said land except as above stated. And as its
    
      “CONCLUSIONS OF LAW,
    “Upon the above facts, the court finds that the plaintiff is not entitled to maintain this action to quiet title to said lands.
    “It is therefore ordered, adjudged and decreed that this action be dismissed at the cost of the plaintiff, without prejudice to plaintiff, to its right to bring any other kind of action it may be entitled to maintain in reference to said land, or to maintain an action to quiet title should it legally obtain possession to said land.”
    The state excepted to the conclusions of law, and filed its petition in error in this court seeking to reverse the judgment of the circuit court, and for judgment in its favor upon the finding of facts.
    
      F. S. Monnett, Attorney General; J. D. Miller and S. W. Bennett, for plaintiff in error.
    The first proposition is: What is the source and character of the State’s title to the lands in question?
    We contend that all that was .necessary, under the act of February 4, 1825 (23 O. L., 50), for the state to have acquired title to such lands as the canal commissioners, or any of them, considered necessary for canal purposes was merely to enter upon, take possession of, and use the same for canal purposes, either by themselves, their superintentendent, agent, or engineer. That such acts constituted an “appropriation” under that statute. And that the title so acquired, and vested in the state, is a fee simple. 34 Ohio St., 541; Ohio ex rel. v. Railway Co., 53 Ohio St., 189; Vought v. Railway Co., 58 Ohio St., 160; Hewitt v. The Valley Ry. Co., in the circuit court of the United States for the northern district of Ohio, eastern division. State of Ohio v. Snook, 53 Ohio St., 532.
    The state having acquired the fee simple title to said lands, did nothing to surrender or qualify it. No reversion works against the state by reaon of non-user. Walker’s American law, page 344; Anderson’s Law Dictionary; Washburn’s Real Property, Vol II, page 344; Ohio ex rel. v. Ry. Co., 53 Ohio St., 244.
    The title acquired by the state being an unqualified fee, where was there any “residue of an estate remaining in the grantor?”
    The act in question under which canal lands were thus appropriated (23 O. L., 57) did not make the fee simple title conditional upon continuous user or occupancy, nor did it provide for any reversion of the title to the original grantors.
    Possession by the state follows from its owner ship, and the state cannot be disseized except in the manner provided by the statute. Its ownership being continuous since 1828, its possession is likewise continuous; no act amounting to disseizin being shown.
    Examining the finding of facts critically, one cannot help but characterize the ownership or possession claimed by the defendant as a “pretentious, bald assertion,” with nothing to support it.
    .Can an individual acquire title or possession to state property by “claiming to be the owner thereof, and erecting buildings thereon?” The proposition answers itself. We admit that, as between individuals, such an assumption of possession might ripen into a title in the claim after a term of years, if it be exclusive, adverse and continuous.
    But such a rule never obtained against the state.
    
      To be possession at all, it must be such possession as would ripen into a title in time. And as against the state no such title can ever accrue. Lindsey v. Miller, 6 Pet., 666; People v. Van Rensellear, 8 Barb., 189; People v. Clarke, 10 Barb., 120; Kingman v. Sparrow, 12 Barb., 201; Ward v. Bartholomew, 6 Pick., 409; Burgess v. Gray, 16 How., 48; Vickery v. Benson, 26 Ga., 590; Trustees Green Tp. v. Campbell, 16 Ohio St., 11; Oxford Tp. v. Columbia, 38 Ohio St., 87; Seeley v. Thomas, 31 Ohio St., 301; Wallace v. Miner, 6 Ohio, 366; Wallace v. Miner, 7 Ohio (1st pt.), 249; State v. L. S. & M. S. Ry. Co., 1 N. P., 292; Wastenay v. Schott, 58 Ohio St., 410; Washburn Real Property, Vol. 3, pages 171, 203; Burr v. Gratz, 4 Wheat., 213; Smith v. Burtis, 6 Johns., 218; Cadman v. Winslow, 10 Mass., 146; 2 Prest. Abst., 286; 4 Kent’s Commentaries, 482; Den v. Hunt, 20 N. J. L., 491.
    It was said by the circuit court that Maxwell was the tenant of Squires, a former claimant to said lands, and at the time of entering into a lease with the State of Ohio, he had not surrendered possession under the lease made with Squires; hence, that he, at that time, was not a tenant of the state, and this action cannot be maintained, as the state was not in possession itself, or by its tenant Section 5779, Revised Statutes.
    We admit that, in order to maintain the action, the plaintiff, the state of Ohio, must set forth and prove actual possession, and also must have the legal title. Clark v. Hubbard, 8 Ohio, 382; Buchannan v. Roy, 2 Ohio St., 251; Thomas v. White, 2 Ohio St., 540; Douglas v. Scott, 5 Ohio, 194.
    It could only be by virtue of a lease executed under the provisions of the canal commissioner’s act found in Vol. 86, Ohio Laws, page 270. No other way is provided by statute. It is unnecessary to state that the defendant herein had no such lease from the state, but the lease to Maxwell, the tenant of the state, made about August, 1890, was made pursuant to this act.
    Under section 5 of said act, before the commis' sion could enter into such lease, such commission shall find the land to be the property of the state; and with the board, of public works, and its chief engineer, shall first determine it not to be necessary for the actual use for the canals of said state; and it further provides the terms they may lease it upon.
    The finding of facts showing that the state executed a lease to Maxwell for said lands, it will be presumed, in the absence of any evidence to the contrary, that all the necessary steps were taken, acts done, and findings made by the proper authories before entering into such lease.
    We think the maxim, “omnia rite acta prsesumuntur” is properly applied to such a case. We should not presume a state of facts which would “invalidate the record.” Sheehan v. Davis, 17 Ohio St., 579; Wilson v. Giddings, 28 Ohio St., 561; Lessee of Winder v. Sturling, 7 Ohio, 539.
    We contend that section 5779, Revised Statutes, does not contemplate that a mere “squatter’s” occupation of real estate is “possession,” such as would preclude the rightful owner from maintaining an action against him to quiet his title. And if the defendant was occupying the land at all, which we deny, it could only be as a “squatter,” or trespasser, one without any claim of right. Grubb v. Wells, 34 Iowa, 150; Washburn Real Property, Vol. 3, page 139; Pulaski County v. State, 42 Ark., 118.
    
      The state can never lose its title by “adverse possession” in another.
    The defendant, Griftner, did not get a deed of said lands from Squires, the pretended owner, until in May, 1894. At that time Maxwell was onr tenant. Griftner, therefore, never acquired any possession himself; and as this action is against him alone we are not concerned with the claims, if any, made by his grantors.
    The state’s possession at the time of his purchase was notice to him of onr title, and he took such deed as he received with knowledge of all our rights. Talbut v. Singleton, 42 Cal., 395; Canfield v. Hard, 58 Vt., 217; (S. C.) 49 Am. Rep., 100; House v. Beatty, 7 Ohio (2nd pt.), 84; Kelly v. Stanberry, 13 Ohio, 408; Williams v. Sprigg, 6 Ohio St., 585; McKenzie v. Perrill, 15 Ohio St., 162; Harvey v. Jones, 1 Disney, 65; Jaeger v. Hardy, 48 Ohio St., 335.
    
      Patrick Gaynor and C. B. Dechant, for defendant in error.
    The issue made by the petition and the first defense of the answer as to the possession of the land in controversy is the most important, and, as we think, the only question in this case.
    Had the State of Ohio, at the time of the commencement of this action below, actual possession of said land, by its agents or tenant? In order to maintain its action possession was necessary. R. S., 5779; Clark v. Hubbard, 8 Ohio, 382; Douglass v. Scott, 5 Ohio, 194; Collins v. Collins, 19 Ohio St., 368; Thomas v. White, 2 Ohio St., 540; Raymond v. Railway Co., 57 Ohio St., 271.
    It is a well-settled rule of law that a tenant cannot deny his landlord’s title. Maxwell v. Griftner, 
      5 C. D., 323; Moore v. Beasely, 3 Ohio, 294; Hamilton etc., Co. v. C., H. & D. R. R. Co., 29 Ohio St., 341; Clark v. Beck, 72 Ga., 127; Bertram v. Cook, 32 Mich., 518; Brown v. Kellar, 32 Ill., 131.
    And as a result of. the foregoing rule, a tenant who has obtained possession of land from his landlord cannot attorn to a third person without first surrendering possession. Juneman v. Franklin, 67 Tex., 411; Trabue v. Ramage, 80 Ky., 323.
    An acceptance of a lease by a tenant in possession from a person other than his landlord works no legal change in his relations as tenant. Freeman v. Ogden, 40 N. Y., 105.
    A tenant cannot attorn to the true owner of the premises as against his landlord. Smith v. Granberry, 39 Ga., 381.
    A tenant cannot attorn to any other person than his landlord during his tenancy. Leavitt v. Stewart, 2 Stew., (Ala.), 474; Clark v. Beck, 72 Ga., 127.
    And the rule applies to one who claims to hold under the tenant. Russell v. Erwin, 38 Ala., 44.
    An adverse claimant who gets into possession of land by tampering with the tenant cannot resist the landlord’s claim where the tenant could not, and the rule applies to the state. Taylor, Land & Ten., Sec. 705.
    Counsel for the state claim that if the state ever had title to the land, then, in the absence of a conveyance thereof by the state, it was and is impossible for any one but the state to be in the actual possession of said land.
    A sufficient answer to that proposition is found, we think, in the very act of the legislature under which plaintiff in error is prosecuting this action, which clearly indicates that persons may be found in the possession of land to which the state has title. 86 O. L., 270, Sec. 6.
    Actual possession means the physical occupation of the land and the exercising of dominion and control over it, and a person may be in actual possession of land without any title thereto; in fact, possession may be so-long continued as to ripen into a perfect title.
   Burket, J.

The facts found by the circuit court show that the State of Ohio acquired the fee simple title to the lands in question by the occupation and use thereof for canal purposes, and that thereafter the former owners of the land had no title to, or interest in said lands. 23 O. L., 50, Sec. 8; State of Ohio ex rel. v. Ry. Co., 53 Ohio St., 189; State of Ohio v. Snook, 53 Ohio St., 521.

The claim is made by counsel for defendant in error, that the.state was not in possesion of these lands by itself or tenant, and that therefore it could not maintain an action to quiet title, and this was the ground upon which the circuit court rendered judgment in favor of the defendant below.

Section 5779 of the Revised Statutes provides that

“An action may be brought by a person in possession, by himself or tenant, of real property, against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest.”

If the state was in possession of these lands by itself or tenant when it brought its action to quiet title it had a right to maintain the action, but if it was not in possession of the lands by itself or tenant it could not maintain this form of action.

The facts found show that the state acquired the fee simple title to the lands, and no fact appears which shows that the state ever parted with that title, and it must therefore be assumed that it still retained such title. When the state quit using the lands for canal purposes in the year 1848 the former owners, and those claiming under them, entered upon the lands, claiming to be the owners, and erected buildings thereon and used the lands until 1886, and then made a lease of the lands to one P. P. Maxwell, which lease by its terms ran to July, 1891. This entry upon the lands and claiming to be the owners thereof was without warrant of law, and gave the former owners of the lands no color of title, because as against the state their possession could not ripen into a title.

In the year 1890 the state caused these canal lands to be surveyed and platted, and claimed to be the owner thereof and asserted title thereto, and in August of that year duly executed and delivered a lease of said lands to said. P. P. Maxwell for a term of fifteen years, while he was holding under said lease from the" former owners and as their tenant, and he has remained in possession of said lands ever since, and has paid rent to the state, and. refused to pay rent to the former owners.

Under this state of facts, the question is whether the state was in possession of the lands by its tenant. The state claimed and was the owner of the lands, surveyed and platted the same, asserted title thereto and made a lease thereof and received the rent therefor. These facts clearly constitute possession by tenant.

But it is urged by counsel for defendant in error that as Mr. Maxwell had accepted a lease of these lands from the former owners, and was in possession of the lands under that lease when he accepted the lease from the state, that the doctrine that a tenant cannot dispute the title of his landlord is applicable, and that the possession of Mr. Maxwell continued to be the possession of the former owners, and could not become the possession of the state. The rule that a tenant cannot dispute the title of his landlord is sound, and we have no fault to find with the rule in cases where it is applicable. The rule has application only to litigation between landlord and tenant and those claiming under them. This is not such a case. Here the litigation is not between landlord and tenant, but between two parties, each of whom claims to own the fee simple. The state does not claim under or from Mr. Maxwell, and he is not a party to the suit. In an action by the former owners against Mr. Maxwell for possession, the rule of evidence that the tenant cannot dispute the title of his landlord would obtain, but that rule cannot have the effect to oust an actual possession by a mere theoretical one, in an action to quiet title. In such an action the possession need not be acquired rightfully, so long as' it is actual. The object of the action is to test and quiet the title, and this may be done by any one in actual possession, and the question as to whether the possession is rightful will usually be settled by the judgment as to the title. The right to bring the action is not limited by the statute to one rightfully in possession, but it may be brought by anyone in possession. The matter of the right is involved in the trial of the merits of the case.

It is not a question as to what Mr. Maxwell can or cannot do as to disputing the title of his landlord, whether such landlord be the state or the former owners, but the question is whether the state had the power to put him into actual possession of its lands while he held, as against the state, a wrongful possession of the same lands under a lease from persons having no color of title. We think the state had such power. In Taylor’s Landlord and Tenant, section 705, the author says: “So an adverse claimant, who gets into possession of land by tampering with the tenant can not resist the landlord’s claim where the tenant himself could not.” This clearly implies that an adverse claimant may get into actual possession by tampering with the tenant, and being thus in actual possession, our statute enables him to test the question as to title, by an action to quiet title.

We therefore hold that under the facts as found by the circuit court, the possession of Mr. Maxwell under his lease from the state, was the possession of the state, and that his. duty to the former owners did not, as between the state and such former owners, disqualify him from becoming the actual tenant of the state, and that his possession under such actual tenancy was and is the possession of the state.

The title to these lands being in the state, the auditor of Warren county had no authority to put the lands upon the duplicate for taxation, and the tax sale and the deed of the auditor were void, and conferred no right upon the purchasers to hold the lands.

The judgment of the circuit court upon the facts found should have been for the state, and its judgment will thereforé be reversed, and judgment rendered by this court for plaintiff in error.

Judgment reversed and judgment for plaintiff in error.  