Lessee of Ewing v. Burnet – Case Brief
Lessee of Ewing v. Burnet, 36 U.S. (11 Pet.) 41 (1837).
Facts: Symmes executed a deed to the same parcel of land to Ewing (P; originally to Forman, then to Williams, then to Ewing as William’s devisee) in 1798 and then to Burnet (D) in 1803. Ewing instituted an action of ejectment against Burnet in 1834. D claimed adverse possession for over 21 years. D had resided across from the lot since 1804 and had paid taxes on the lot from 1810-1834. D had claimed the lot as his own from the date of the original deed up until the trial. The property was used only for digging sand and gravel. D had claimed exclusive right to the gravel on and gave permission to others to remove sand and gravel. D brought actions in trespass against those who did so without permission. There was evidence that Williams had been aware of D’s activity but there was no evidence that Williams had ever opposed D’s entry, demanded possession, or assumed any exercise of ownership over the lot. The trial court entered judgment for D and P appealed.
Issue: What must be proven in order to demonstrate the “notorious” requirement of adverse possession?
Holding and Rule (Baldwin): Acts of visible and notorious ownership under color of title over premises for 21 years are sufficient to demonstrate the notorious requirement of adverse possession.
When acts of visible and notorious ownership are continued for 21 years with the adverse claimant’s knowledge, without interruption, or without an adverse entry by the adverse claimant, such acts are evidence of an ouster of the former owner and an actual adverse possession against him.
Neither actual occupation, cultivation, nor residence is necessary to constitute actual possession, when the property is unsuitable for any permanent useful improvement, and the continued claim of the party is shown by public acts of ownership, such as he would exercise over his own property, but would not exercise over property he did not possess. This determination is for the trier of fact and under these facts there was sufficient evidence that a jury could find in favor of D.