Clapp, Waesche and Artaserse. The opinion of the court was delivered by Clapp, S.j.a.d.
The question presented in this action to quiet title is whether the plaintiff acquired title, through adverse possession, to a certain strip of land on a peninsula in Lake Hopatcong, lying north of a line marked X-Y on a map in evidence. The trial court found against the plaintiff on this question, and plaintiff appeals. It was conceded on the oral argument before us that plaintiff does not have good record title to the land in question. On the other hand there was proof below, to which no objection was taken, that defendant's record title is good.
The strip in question, referred to in the case as the "gore," runs over 1,000 feet along the northern part of the peninsula, broken at one point by a cove. It is not marked off in any way by a fence. Except at the cove, it lies just south of a certain ten-foot strip which skirts the shore allegedly (in another litigation, plaintiff claims this ten-foot strip has disappeared through erosion) and which is owned by a corporation not a party to this action. The gore comprises about an acre, about 1/22nd of the whole peninsula, and its width -- i.e. , the distance from the X-Y line to the ten-foot strip -- varies from 120 to 2 feet.
Plaintiff purported to buy the peninsula in 1951 from persons who have been referred to as the heirs of Daniel Callaghan. It apparently was admitted below for the purposes of the action that through Daniel Callaghan -- his title goes
back to 1884 -- plaintiff "has record title to the whole of the peninsula, with the exception of the" gore and the ten-foot strip.
To sustain a title through adverse possession, the claimant must establish possession of a certain character:
"actual and exclusive -- adverse and hostile -- visible or notorious -- continued and uninterrupted." Foulke v. Bond , 41 N.J.L. 527, 545 (E. & A. 1879).
Moreover -- in any event when he makes a claim (as plaintiff does here) as against the record owner -- he has the burden of proving his case clearly and positively. Redmond v. New Jersey Historical Society , 132 N.J. Eq. 464, 474 (E. & A. 1942); Northern R. Co. v. Demarest , 94 N.J.L. 68, 72 (Sup. Ct. 1919); Mason v. Home Real Estate Co. , 90 N.J. Eq. 455 (Ch. 1919); Shields v. Ivey , 52 N.J.L. 280, 282 (Sup. Ct. 1890); Baldwin v. Shannon , 43 N.J.L. 596, 603 (Sup. Ct. 1881); Rowland v. Updike , 28 N.J.L. 101 (Sup. Ct. 1859); Cornelius v. Giberson , 25 N.J.L. 1, 31 (Sup. Ct. 1855).
These principles being settled, the case, in this aspect of it, is largely a factual one, depending on whether the acts of Daniel Callaghan and those who claim under him can be said to demonstrate an actual, continuous and visible or notorious possession for the statutory period. We need not consider the matter of hostility dealt with in Predham v. Holfester , 32 N.J. Super. 419 (App. Div. 1954).
There is some testimony that the whole peninsula was "always" farmed by Daniel Callaghan and his successors in interest, that "it was all plowed up at one time or another"; but the testimony was so vague and general in its tenor as not to meet the requisite standard of clarity and positiveness with respect to the gore itself. The evidence we have reference to, does not show precisely in what years -- or for how many years -- the land was cultivated or the extent or nature of the cultivation, or whether the gore itself was planted. Indeed the gore seems to have been (until apparently in
recent years when it was somewhat filled in) in considerable part a swamp. Also located thereon are some brush ...