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Law School Case Brief

Philbin v. Carr - 75 Ind. App. 560, 129 N.E. 19 (1920)


Adverse possession must be exclusive. Two or more persons cannot hold one tract of land adversely to each other at the same time. It is essential that the possession of one who claims adversely must be of such an exclusive character that it will operate as an ouster of the owner of the legal title; because, in the absence of ouster the legal title draws to itself the constructive possession of the land. A possession which does not amount to an ouster or disseisin is not sufficient. The possession must be exclusive also as against persons other than the owner of the legal title; and where the claimant occupies the land in common with third persons, or with the public generally, the possession is not such exclusive possession as will constitute the basis of a title.


Defendants, the heirs of a property owner, appealed a judgment from Laporte Superior Court (Indiana), which rendered a verdict for plaintiff, an adverse possession claimant, in a quiet title action. The property in question was a wilderness, consisting mainly of sand dunes and swamps. The claimant lived in a dugout near the property, constructed of driftwood, almost completely heaped over with sand, and located in a hollow. From time to time, she moved into abandoned hunters' shacks. She took timber, wild fruit, game, and river ice from the property, but she made no attempt to improve the property. She claimed to hold the property under color of title, alleging that she had been told that she could have the land because it was worthless.


Was there sufficient evidence of adverse possession so as to entitle the claiment title to the land?




The court found her claim insufficient, holding that spoken words could not constitute color of title. The court overruled Hitt v. Carr, 62 Ind. App. 80, 109 N.E. 456 (1915) to the extent it held to the contrary. The court held that the claimant had failed to prove adverse possession because she had not established actual occupation of such unequivocal character as to indicate unmistakably to the owner, visiting the premises at any time during the statutory period, that she had appropriated it to her own use and was asserting exclusive ownership thereof. The court found that the jury instructions regarding adverse possession were erroneous.

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