16 Nev. 260 | Nev. | 1881
By the Court,
The plaintiff having filed his protest in the United States Land Office against the issuance of a patent by the government to the defendant for the mining ground described in the complaint, thereafter brought this action to determine the right of possession thereto, in compliance with the requirements of the mining laws of congress. A trial in the district court resulted in a verdict for the defendant, and from the judgment thereupon entered and an order denying
Appellant, in the first place, insists that the evidence is insufficient to justify the verdict. To reach an understanding of this point it is necessary that some of the facts developed at the trial should be stated.
The action involves the right of possession to an undivided fifty feet of the south five hundred feet of the Consolidated Virginia mine on the Comstock lode. This five hundred feet was located by Sides, Baldwin, Belcher, and plaintiff in the month of June, 1859, and was known as the Sides ground or claim. Plaintiff’s theory is, that this claim originally embraced eight hundred feet; that afterits location a fear existed among its owners that at a threatened meeting of the miners of the district its length would be reduced to five hundred feet, and in order to frustrate such action and prevent the excess over five hundred feet from becoming subject to occupation by strangers, they conveyed it to some of their friends, and the claim thus segregated was thereafter known as the Best and Belcher claim; that the interests of plaintiff and of his co-locators thereby became reduced to one hundred and twenty-five feet each, and that these several interests have been reduced by conveyances to twenty-five feet each, which amount of ground they now own, excepting Sides, who sold his twenty-five feet to plaintiff’s grantor shortly before the commencement of this action.
The defendant contends that during the month of June, 1859, John D. Winters claimed to own three hundred feet of the ground embraced in the. Sides location, and that pending such adverse claim Winters sold an undivided half of his interest to one James O. Gregory. Thereupon Gregory proceeded to the premises for the purpose of representing his own and Winters’ interest. Shortly afterwards the conflicting claims were compromised by plaintiff and his associates agreeing with Gregory, for himself and Winters, that the ground should be divided into five interests, of one hundred feet each; that plaintiff and his associates should
The particulars in which the evidence is alleged to be insufficient is, that it nowhere appears that Gregory had authority from Winters to adjust the differences mentioned. If this compromise was made, and from the verdict we must assume that it was, it matters not to plaintiff whether Gregory was or was not authorized to make it. From the year 1859 until the year 1875, the locators of the Sides ground abided by the terms of the settlement made; under it the plaintiff and Sides, as well as Baldwin and Belcher, received without molestation the one hundred feet to which each was entitled, and severally made conveyances down to March, 1863, by which each of them alienated, in the aggregate, the significant interest of one hundred feet, to which he was entitled under the compromise.
Upwards of fifteen years has elapsed since each received the proceeds of such sales, and no one of them has ever been interrupted in the enjoyment thereof. Neither they nor their grantees have ever been molested in the possession of the respective interests received under the terms of the compromise, and in the year 1865 Winters conveyed to plaintiff’s grantee whatever interest he then had in the -Sides ground. These circumstances, connected with the further fact that the defendant at the trial maintained the validity of the compromise which it alone, as the successor in interest of Winters, could have attacked, rendered the question of Gregoryls authority immaterial to- the plaintiff’s case.
The second assignment of error consists in the giving of an instruction to the jury containing in part the following language: “To support the statement of any of the witnesses you can consider the probability of his evidence and the facts to which he testifies, and any facts or circumstances detailed which might tend to corroborate or sustain the statement of any witness; and you may also take into consideration any description or calls in the deeds intro
At the trial the defendant introduced in evidence the conveyances of the property made by the locators. These deeds showed that Belcher, after having conveyed fifty feet to Gregory, made a further conveyance of fifty feet to Bickelton, in which he recited the fact that the ground conveyed embraced his entire interest in the Sides claim. A similar recital is contained in the deed of Sides to A. E. Head for one hundred feet. The objection is to the effect that neither these recitals nor any deeds, save those made by plaintiff or Sides, could have affected plaintiff’s interest, and should not, therefore, have been considered by the jury. These deeds were not offered in evidence for the purpose of estopping the plaintiff in the assertion of his claim, but for the purpose of establishing defendant’s theory of the compromise and the interests taken by each of the locators under it. With this character of evidence defendant proved that each of the locators conveyed one hundred feet and no more of the Sides ground. This certainly was competent evidence of the extent of the ownership of the several locators, and tended to disprove plaintiff’s theory that they severally owned one hundred and twenty-five feet.
In this view the attention of the jury was properly directed in the quoted instruction to the calls and descriptions, and not to the recitals in the deeds. These recitals were, however, admissible for the purpose of rebutting the testimony of Sides and Belcher, each of whom had sworn that the original interests of the location was one hundred and twenty-five feet, and not one hundred feet, as claimed by defendant; and, although no estoppel was claimed, the recital in Sides’ deed was conclusive against plaintiff’s claim' to the twenty-five feet obtained through him.
The third exception consists in the admission in evidence of one of the books of the Sides eor-pany. The Sides com
It was also proven that tbis book was at all times open to tbe inspection of tbe members of tbe company at its office. In submitting' tbe book to tbe consideration of the jury they were instructed that if they believed plaintiff bad actual knowledge of its contents they could then consider tbe entries mentioned as admissions of tbe extent of bis ownership. Tbe objection was directed to tbe point that plaintiff could not be bound by tbe entries, unless be bad actual knowledge of them at tbe time. Tbis objection is disposed of by tbe terms of tbe instructions.
Tbe remaining objection arises upon instructions touching tbe application’of tbe statute of jimitations to the facts
From tbe fact that both parties claim title from a common source, plaintiff contends that the evidence of ouster was insufficient to set tbe statute in motion, in this, that no notice of an intention to bold adversely was given him. In cases where tbe relation of tenancy in common exists, tbe exclusive possession of one tenant in common is not necessarily inconsistent with the continuance of this relation* and tbe commencement of an adverse possession must be unequivocally manifested. It is not necessary, however, in order to set tbe statute in motion in favor of one tenant in common against bis co-tenant, that actual notice of an intention to bold adversely should be given. “To make a possession of tenant in common adverse as against tbe other,” says Angelí in bis treátise on tbe limitation of acr tions, “it is not necessary that notice should be given of tbe adverse intent; but tbe intent must be manifested by outward acts of an unequivocal kind.” (Sec. 429; Humbert v. Trinity Church, 24 Wend. 587; Lodge v. Patterson, 3 Watts, 74; Owen v. Morton, 24 Cal. 373; Weisinger v. Murphy, 2 Head (Tenn.), 674; Culler v. Motzer, 13 S. & R. 356; Bradstreet v. Huntington, 5 Pet. 440 ; 2 Greenl. on Ev., sec. 557.)
Tbe uncontradicted testimony in this case, howevei’, shows that tbe Sides corporation did not enter as tenant in common with tbe plaintiff, but as owner of tbe entire mining claim. It at no time acknowledged plaintiff’s title, but held under an avowed claim to tbe whole, and especially in exclusion of him and those under whom be claims, claim
The doctrine is discussed in Parker v. Proprietors etc., 3 Met. (Mass.) 100. In that case defendants acquired title through one Tyler, whose title was valid to an undivided portion of the estate only. - The court said: “It does not appear that Tyler had notice or knowledge of the defect in his title. But whether he had such knowledge or not, it is ven'’ clear that he wms in possession, claiming the entire title, and this undoubtedly was an adverse possession, which, being open and notorious, amounts to a disseisin. To constitute a disseisin, it is not necessary, at the present day, to prove the forcible expulsion of the owner, nor-is it necessary for a tenant in common to prove an actual ouster óf the co-tenant. If he enters, claiming the whole estate, the entry is adverse to the other tenants. The intention so
The same principle was announced in Bogardus v. Trinity Church, 4 Paige Ch. 178, as is thus epitomized by the reporter: “Where one of several tenants in common conveys the entire premises held in common, and the grantee enters into possession under the conveyance, claiming title to the' whole premises, such possession is adverse to the co-tenants of the grantor, and at the expiration of the period of limitation, their right will be barred. See also Clymer’s Lessee v. Dawkins, 3 How. 674; Jackson v. Smith, 13 Johns. 407; La Frombois v. Jackson, 8 Cow. 589; Kittredge v. Locks and Canals, 17 Pick. 246.
The judgment and order are affirmed.