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O''Brien v. Bilow

Decided: January 13, 1939.

CATHERINE O'BRIEN, PLAINTIFF-RESPONDENT,
v.
LUDWIG BILOW, DEFENDANT-APPELLANT



On appeal from the Supreme Court, Somerset Circuit.

For the plaintiff-respondent, Herr & Heath (Ryman Herr, of counsel).

For the defendant-appellant, McDonough & McDonough (Charles A. Reid, Jr., of counsel).

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. Plaintiff-respondent brought suit in ejectment to recover possession of land lying within the limits of the south branch of the Raritan river and a fence which had been erected on the southerly bank of the river and on land either on or adjoining that of the defendant-appellant. Plaintiff claimed title and right of possession based upon a deed for the land to the north of the river and asserts that although her deed does not cover the land in question her grantors, prior to the conveyance to her on September 25th, 1907, were in actual, open, notorious, hostile and adverse possession of the lands, and her and their such possession extends more than thirty years. Under the testimony there is no doubt that the plaintiff and her predecessors in title had erected across the river and along the southerly bank a fence which brought the disputed land into the possession and use of the plaintiff's grantors and plaintiff. The jury found for the plaintiff and defendant appeals.

The defendant first complains that the motion made to strike the complaint should have been granted upon the grounds (a) that it did not appear that the plaintiff and her predecessors in title were in possession for thirty years; but that contention, as we have indicated, is ill-founded in point of fact. Defendant also says that (b) in any event, the plaintiff's and her predecessors' right of possession could not ripen

into title until after sixty years of possession. In other words, he claims that chapter 188 of the act of 1922 (R.S. 1937, 2:25-1) upon which plaintiff relies, could not accelerate the time within which a person would be entitled to claim title by adverse possession if part of the time relied upon preceded the passage of the act. But we think that is not so. The act of 1922 declares that "thirty years' actual possession of any real estate excepting woodlands or uncultivated tracts, and sixty years' actual possession of woodlands or uncultivated tracts, uninterruptedly continued by occupancy, descent, conveyance or otherwise, shall, in whatever way or manner such possession might have commenced or have been continued, vest a full and complete right and title in every actual possessor or occupier of such real estate, woodlands or uncultivated tracts, and shall be a good and sufficient bar to all claims that may be made or actions commenced by any person whatsoever for the recovery of any such real estate, woodlands of uncultivated tracts." Now plaintiff's adverse possession commenced in 1897 and therefore matured in 1927, or five years after the enactment of the statute in question. That the legislature could lawfully pass the act is well settled where, as here, the parties interested had a reasonable time after its passage to enforce any rights they might have. Lapp v. Belvedere, 116 N.J.L. 563; 8 Wait's Actions and Defenses, 570. (c) The defendant further says there was error in the refusal to strike, because it appeared that it was uncultivated land and therefore not within the purview of the act. But that contention is ill founded in point of fact. It appeared that the land was used for the feeding and pasturing of cattle, and was not "uncultivated" land within the meaning of that term as used in the act. (d) So likewise as to the contention that the pleadings failed to show adverse possession. (e) The contention that the pleadings failed to show that the defendant was in possession is ill founded, since the fact was admitted by the answer. R.S. 2:51-14.

The real question in this case, as we see it, is whether or not possession of the predecessors in title of the plaintiff-respondent may be tacked on to her possession so as to cover

the required period. Upon this point there seems to be no doubt. In the case of Colgan v. Pellens, 48 N.J.L. 27; affirmed, 49 Id. 694, it was held that the possession of a predecessor and privy in title of the person presently asserting the right may be tacked on to that person's possession in order to cover the required time. That was also the holding in the case of Devock v. Nealson, 58 Id. 21, where the facts were very much the same as in the present case. There the description of property granted by the deeds did not cover the disputed area, but there was testimony that the predecessors in title of the plaintiff had been in possession for the required number of years, and it was held that possession if uninterrupted inured to the benefit of the grantees in turn. The question in that case was presented in this form: "If one holding the legal paper title to a piece of land, in enclosing it includes within the enclosure a piece of adjoining land, enters into possession of the entire enclosed tract, and then transfers his legal paper title to another who goes into possession of the entire enclosed tract, can the two adverse possessions be tacked?" The court said: "Now, it is perfectly obvious that the deed, followed by possession of the whole tract, is intended to operate as a conveyance of the possession of all within the enclosure. The legal title passes as to so much of the lot as is within the description in the deed; but the deed, aided by the enclosure and the actual transference of possession of the rest as a part of the lot sold, is sufficient evidence of a transference of possession to raise the required privity between them." And that was the rule adopted in Spottiswoode v. Morris & Essex Railroad Co., 61 Id. 322; affirmed, 63 Id. 667.

We now proceed to examine the remaining points argued by the defendant-appellant, in so far as they are properly raised.

The next point is that the trial court erred in permitting plaintiff's witness to answer a question put by plaintiff as to what purpose the land adjacent to the fence was used for, and in what condition it was kept. We think there was no ...


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