against his cotenant can begin, the former must, by acts of the most open and notorious character, show clearly to the world and to all having occasion to observe the condition and occupancy of the property that his possession is intended to exclude and does exclude the rights of his cotenant. This rule is applicable only where there is a cotenancy and subsequently one of the cotenants makes claim to the entire estate. The possession of a tenant in common may become adverse to his cotenants by acts so open and notorious as to show them that he claims exclusive title and possession. Notice results from conduct leaving the observer no doubt that an exclusive right of enjoyment is asserted. Judge Taft, in the Circuit Court of Appeals, fully and clearly states the law upon this subject in a recent decision, saying: 'Before adverse possession by one tenant in common against another can begin, the one in possession must, by acts of the most open and notorious character, clearly show to the world, and to all having occasion to observe the condition and occupancy of the property, that his possession is intended to exclude and does exclude, the rights of his cotenant. It is not necessary for him to give actual notice of this ouster or disseising of his cotenant to him. He must, in the language of the authorities, 'bring it home' to his cotenant. But he may do this by conduct, the implication of which cannot escape the notice of the world about him, or of any one, though not a resident in the neighborhood, who has an interest in the property, and exercises that degree of attention in respect to what is his that the law presumes in every owner.' Elder v. McClaskey (6 Cir.) 70 F. 529, (542).'
The New Jersey cases are not in conflict with the foregoing.
As has been seen on October 6, 1899 the widow and sole beneficiary under the will of Frederic Ward made a deed to one Smith covering 11.29 acres, as shown on the maps in evidence. Thereafter, in December, 1911, the City of Neward instituted condemnation proceedings, for a port development, against the said premises and other property. Smith was made a party to these proceedings but his cotenant, Marjorie Ward, was not. At that time the tract in question formed part of a large unimproved swamp or salt marsh area partly covered by water at high tide.
The City condemnation proceedings were completed in 1912, and since that date the property has not been taxed. In 1914 the general development of the port was started. It appears that in this development the City constructed Bulkheads 11 feet high along the Newark Bay frontage of the property to retain fill, and in 1915 the acreage in question was filled to a height of 6 or 7 feet. Activities by the City, and apparent to the eye, continued on and over the property until claimant arrived at 21 years of age. Structures were erected thereon and railroad lines were run over it. It was leased, with other property, to the Submarine Boat Works in 1919, and many evidences of possession, by the City and its lessors, were apparent to anyone who visited the premises. An examination of the agreed statement of facts discloses the many activities.
Out of these circumstances I find that the City of Newark had maintained open, notorious, continuous and hostile possession of the property down to the time when claimant, Marjorie Ward, reached her 21st birthday, to wit: December 1, 1919. At that time she became charged with constructive notice, from the record, that she had an interest in the acreage by virtue of inheritance from her deceased father. That she had actual notice of the situation, in 1919 and again in 1923, appears by deeds which she signed to clear the title to other properties of which her father had died seized, which deeds recite defects of title because of her birth after the date of her father's will.
On September 2, 1939 twenty years elapsed since Marjorie Ward became 21 years of age. During that period, so far as the evidence here discloses, she made no attempt to take over her interest in the property.
The fact that an exclusive authority was functioning on and over the premises was apparent to the eye of any observer, including the claimant. The mere fill and bulkheading, standing alone, disclosed an owner hostile to her rights. She could see, by comparison with the surrounding terrain, that the acreage, of which her father died seized, had been a swamp, and when she reached 21 it was highly improved land with buildings on portions of it. It is clear, I think, that possession by the City, as evidenced in this case, was possession of the entire 11.29 acres, and it, therefore, included the 3.11 acres with which we are immediately concerned. The activities of the City over the 3.11 acres alone spell out adverse possession in the City pro tanto.
It is argued that there is no evidence that Smith ever took actual possession of the property, and therefore when the City condemned, it did not affect claimant's title. Whether Smith took actual possession or not, claimant's title was not affected, as has been seen; she was an infant at the time. It is my thought that, on condemnation, the City took whatever Smith had. An attempt is made to differentiate between a taking by deed and a taking by condemnation. The case of Foulke v. Bond, 41 N.J.L. 527, at page 540, holds: 'Entry by a deed of conveyance for the entire estate, made by one of the co-tenants and duly placed on record, has all the constituent elements of a disseizing at common law.' It is urged that this rule does not obtain where the taking is by eminent domain. The point is immaterial. It does not obtain here for the very important reasons that claimant had a title at the time; was not a party to the condemnation proceeding, and was protected as a minor. There is this to be said about it however: When claimant became 21 years of age she had constructive notice of the deed to Smith in severalty and of all the continuing factors bearing on adverse possession by the City, and she did nothing about it for 20 years thereafter.
The conclusion here is that the City has gained title of the interest of claimant by adverse possession, and she has lost her right to complain by the running of the Statute of Limitations which is 20 years in this case.
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