My Brethren affirmed this case on three propositions: (1) Because the undisputed evidence showed that the entry by plaintiff on the land was peaceable; (2) because in 1892 appellants purchased a portion of the survey from the holders of the record title; (3) because in 1899 or 1900 the owner of the land entered thereon and cut and removed timber therefrom. I cannot agree with this disposition of the case.
In 1887, Jubal Evans moved into a little house on this large survey of land for the purpose of keeping boarders for one Hester, who was cutting timber from the land; the purpose of his entry being to keep boarders for Mr. Hester, as long as Mr. Hester remained on the logging job. In the fall of 1887 and in the spring and summer and fall of 1888, Jubal Evans cleared up something like 15 acres of land three-fourths of a mile from this boarding house. This land he cultivated every year from 1888 until 1904. His testimony is very full and complete that he cleared this land for the purpose of acquiring title to 160 acres by limitation. In 1892, he bought from the owners of the large survey 160 acres, including the boarding house and improvements surrounding it. This trade was made by him through Mr. Hester. At the time be bought this land, he told Mr. Hester that he was claiming 160 acres down next to the creek; that he did not want to live down on that land; and that he wanted this 160 acres around the boarding house for a place to live. At no time did the plaintiff assert title by limitation to any portion of the land bought by him through Mr. Hester. According to the testimony of plaintiff, he at all times claimed his field of 15 acres and enough land surrounding it to make 160 acres, and, beginning in 1892, from time to time told Mr. Hester that he was claiming it. This claim began in 1887 and continued until 1904, at which time he moved away.
While my Brethren are correct in saying that the original entry on this land was peaceable, in my judgment the clearing of 15 acres of land, three-fourths of a mile from the boarding house, was adverse and hostile to the purposes of his entry. It had nothing to do with operating the boarding house, and was in no way incident to nor related to the purposes of the original entry. It was a question for the jury whether the facts testified to by plaintiff were sufficient to put a reasonably prudent man on inquiry as to the nature of his possession and the extent of his claim.
I recognize the general rule:
"So long as the relation of landlord and tenant exists, the tenant cannot acquire an adverse title as against his landlord." R.C.L. vol. 1, 747.
But this authority, on the same page, states the further rule:
"It is equally well settled that one who enters as a tenant is not, merely because of that fact, precluded from subsequently holding adversely to his landlord. To do so, however, it is necessary to renounce the idea of holding as tenant, and to set up and assert an exclusive right in himself. It is also essential that the landlord should have actual notice of the tenant's claim, or that the tenant's acts of ownership should be of such an open, notorious, and hostile character that the landlord must have known it,"
Jubal Evans' act in clearing up 15 acres of land and cultivating the same from year to year was in no way concealed from the owners of the land. It was open, notorious, and hostile to their title.
My Brethren are also sustained by the record in saying that in 1892 appellants entered into an agreement to buy 160 acres of land from the owners of the record title. However, the record further shows that, in buying this land, Jubal Evans expressly and positively stated to the agent of the owners that he was buying it for a home and for a place *Page 609 to live, because he did not want to live on the 160 acres in the bottom. It seems to me that this express assertion of a claim to 160 acres by limitation takes this case out of the rule announced in the authorities cited in the opinion of the majority of the court.
If Jubal Evans had any title to the land, it was by limitation. If he had any limitation, it began in 1887. The owners of the record title did not enter for the purpose of cutting the timber until 1899. Hence the third ground advanced in the opinion of the majority of the court would have no application to the facts of this record.