Philbin v. Carr
129 N.E. 19, 75 Ind. App. 560, 1920 Ind. App. LEXIS 338 (1920)
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Rule of Law:
To establish title by adverse possession, the claimant's possession must be actual, visible, notorious, exclusive, hostile, under a claim of ownership, and continuous for the statutory period, proven by strict, clear, positive, and unequivocal evidence. A mere verbal statement purporting to convey land does not constitute color of title under Indiana law, which requires a written instrument.
Facts:
- Drusilla Carr married Robert Carr in 1875; he lived in a dugout near section 31, a wilderness of sand dunes and swamps by Lake Michigan.
- In March 1876, a man named Bingham allegedly visited the Carrs and orally told Drusilla Carr, "if you will move on the land, you may have it."
- Bingham left a deed with Carr that was not in her name; she later returned it to him at his request and never received a deed from him or heard from him again.
- Over several decades, the Carrs lived in various shacks and cabins in the vicinity of, but not continuously on, lot 2, often moving when structures became uninhabitable.
- The Carrs' activities on the land included fishing, hunting, trapping, occasionally cutting wood, and picking berries.
- The land was widely used by other fishermen, hunters, and trappers who also had shacks along the beach, and the general public used it for pasturing cattle and hunting.
- The appellants (Philbin, Hodge, and Brown) and their predecessors held an unbroken chain of record title to lot 2 and paid property taxes on it every year since 1843.
- Drusilla Carr never paid taxes on the land in section 31, although she did pay taxes on another property she owned nearby.
Procedural Posture:
- Drusilla Carr filed a complaint to quiet title to real estate in section 31 in the Lake Superior Court, a trial court of first instance.
- Jessie M. Philbin, Hattie E. Hodge, and Daisy Holladay Brown (appellants) filed an answer denying Carr's claim to lot 2 and filed a cross-complaint to quiet their own title.
- The case was tried twice in different superior courts.
- Each trial resulted in a jury verdict and a judgment in favor of Drusilla Carr.
- Jessie M. Philbin, Hattie E. Hodge, and Daisy Holladay Brown (appellants) appealed the second judgment, rendered by the Laporte Superior Court, to the appellate court.
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Issue:
Does a verbal statement purporting to give land, coupled with intermittent, non-exclusive, and non-improving acts on wild land, constitute the necessary color of title and the actual, visible, notorious, exclusive, hostile, and continuous possession required to establish title by adverse possession against a record title holder?
Opinions:
Majority - Dausman, J.
No. A verbal statement cannot constitute color of title, and intermittent, non-exclusive, and trivial acts on wild land do not meet the strict requirements for adverse possession. The court held that color of title must be a written instrument purporting to convey title; spoken words are insufficient. The court explicitly overruled prior Indiana case law (Hitt v. Carr) to the extent it held otherwise, noting that Indiana statutes specifically define what constitutes color of title. The court then analyzed the elements of adverse possession, finding Drusilla Carr's claim failed on every element. Her possession was not actual or continuous, as she lived in various shacks and was absent for periods. It was not visible, notorious, or exclusive, because her acts (fishing, gathering berries, etc.) were intermittent, trivial, "mere predatory acts," and were indistinguishable from the public's general use of the land. Finally, her claim of ownership was not in good faith, as demonstrated by her failure to pay taxes and her knowledge that the promised gift from Bingham was never legally completed with a deed. The court emphasized that the burden of proof is on the adverse claimant to overcome the strong presumption in favor of the record title holder with strict, clear, positive, and unequivocal evidence, which Carr failed to do.
Analysis:
This case significantly clarifies and narrows the doctrine of adverse possession in Indiana. It establishes a bright-line rule that "color of title" cannot be based on an oral statement, requiring a written instrument and thereby overruling prior, more lenient precedent. The decision reinforces the exceptionally high burden of proof required to divest a record title holder of their property, particularly when the land is wild and unimproved. By characterizing the claimant's actions as "intermittent, fugitive, trivial and mere predatory acts," the court signals to future litigants that sporadic or non-exclusive use, even if it is the only practical use for the land, is insufficient to establish the unequivocal, hostile, and notorious possession necessary to put a record owner on notice.
