Ewing v. Burnet
36 U.S. 41, 9 L.Ed.624 (1837)
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Rule of Law:
To constitute adverse possession, it is not necessary to have a fence, building, or other improvement. Visible and notorious acts of ownership exercised over the premises for the statutory period, appropriate to the nature and condition of the property, are sufficient to establish a claim.
Facts:
- John Cleves Symmes, the original owner of lot No. 209 in Cincinnati, conveyed the property to Samuel Foreman in 1798, who then conveyed it to Samuel Williams.
- In 1803, Symmes conveyed the same lot to the defendant, Burnet.
- The lot was an unenclosed, unimproved parcel on a steep, gullied bank, primarily valuable for its sand and gravel.
- From 1804 until 1834, Burnet, who lived across the street, openly and continuously claimed ownership of the lot.
- Burnet paid property taxes on the lot from 1810 to 1834.
- Throughout this period, Burnet exercised exclusive control over the lot by digging and removing sand and gravel for his own use, granting and denying permission to others, and suing trespassers who removed materials without his consent.
- Samuel Williams lived in Cincinnati until his death in 1824 and was aware of Burnet's deed and claim but never made an entry upon the land or exercised any acts of ownership.
Procedural Posture:
- The lessor of the plaintiff, Ewing, brought an action of ejectment against Burnet in the Circuit Court for the District of Ohio to recover possession of lot No. 209.
- At the conclusion of the trial, the plaintiff's counsel moved the court for an instruction to the jury that the plaintiff was entitled to a verdict and that the evidence was legally insufficient to establish adverse possession by the defendant.
- The Circuit Court overruled both motions.
- The jury found a verdict for the defendant, Burnet.
- The plaintiff, Ewing, filed a bill of exceptions and brought the case to the U.S. Supreme Court on a writ of error.
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Issue:
Do overt acts of ownership, such as paying taxes, exclusively controlling the removal of sand and gravel, and bringing actions for trespass over an unenclosed and unimproved lot for twenty-one years, constitute adverse possession sufficient to oust the holder of legal title?
Opinions:
Majority - Justice Baldwin
Yes. To establish adverse possession, the nature of the possessory acts need only be consistent with the character of the land, and enclosure, residency, or cultivation are not required where the property does not admit of such use. The court reasoned that adverse possession is established by visible and notorious acts of ownership exercised over the premises for the required time. The character of these acts depends on the nature and situation of the property. For an unimproved sand and gravel lot, actions like paying taxes, exclusively controlling the removal of sand and gravel, and prosecuting trespassers are public acts of ownership. These actions, performed by Burnet under a claim and color of title for over twenty-one years with the knowledge of the adverse claimant, were sufficient for a jury to find an ouster of the legal owner and the establishment of title by adverse possession.
Analysis:
This case establishes the important principle that the legal standard for 'actual possession' in an adverse possession claim is flexible and context-dependent. It clarifies that for land that is wild, unimproved, or not susceptible to cultivation or building, the requirement of possession can be met through acts of dominion and control appropriate to the land's specific character. This precedent prevents title holders from relying on their deed alone against a claimant who has openly and notoriously used the land as any true owner would for the statutory period. It has become a foundational case for analyzing adverse possession claims involving non-traditional property uses.
