40 Neb. 792 | Neb. | 1894
August 9,1889, the plaintiff filed a petition in ejectment in the district court of Washington county, which was as follows: “The plaintiff complains of the defendant for that said plaintiff has a legal estate in and is entitled to the possession of the following described premises, to-wit: The north half of the southeast quarter of section number 21, in township 18 north, range 12 east, in Washington county, Nebraska; and said defendant, ever since the first day of April, 1888, has unlawfully kept and still keeps the plaintiff out of the possession thereof. The plaintiff therefore prays judgment for the delivery of the possession of said premises to him.'” To which the defendant filed the following answer:
“2. This defendant admits that he is in possession of a tract or piece of land containing about forty acres, but denies that it is any part of the land set forth in plaintiff’s petition, and this defendant denies that he unlawfully keeps the plaintiff out of the possession thereof.
“ 3. And this defendant, further answering, says that this court has no jurisdiction over the subject-matter of this action, for the reason that said land so occupied by this defendant and claimed by the said plaintiff is a tract or parcel of land known as Humphries island, which is now in the state of Iowa, and not within the jurisdiction of this court. Wherefore this defendant prays to be dismissed with his costs.”
A jury was waived and trial had to the court, resulting in a finding and judgment for the defendant, which, on motion of plaintiff, was set aside and a new trial granted. At the next term of the court the case was tried to the court and a jury. The jury rendered a verdict for the defendant as follows: “We, the jury, duly impaneled and sworn in this cause, do find, at commencement of this action, the defendant was entitled to the possession of the north half of the southeast quarter of section 21, township 18, range 12 east of the 6th principal meridian.” The plaintiff filed a motion for a new trial, which was argued, submitted, and overruled, and judgment was entered, on the verdict, for the defendant. Plaintiff brings the case to this court on petition in error. The following is a copy of the motion for a new trial:
“ The plaintiff moves the court for a new trial of this cause for the following reasons:
“1. The verdict is not sustained by sufficient evidence.
“3. The verdict is contrary to the fourth paragraph of the instructions given by the court.
“4. The court erred in giving the seventh paragraph of instructions.
“5. Error of law occurring at the trial and excepted to by plaintiff.”
One assignment of error is to the effect that the court below erred in giving instruction No. 7. This, as will be noticed by the above copy of motion for a new trial, was presented by the motionfor the ruling of the lower court; but an examination of the record shows that no exception to the giving of this instruction was noted or preserved in the district court, and, in accordance with a well settled rule of this court, the assignment will not be considered. (See Darner v. Daggett, 35 Neb., 695, and cases cited.)
Another assignment of error is in the following language: “The court erred in excluding from the jury page 610 of the field notes of the surveyor general, marked * Exhibit B’ in transcript, which ruling was excepted to by plaintiff.” Exhibit B, referred to in this assignment, purports to be a portion of a certified copy of the field notes of the original survey of public lands in Washington county, this state, on file in the office of the surveyor general, and were probably competent evidence, but the action of the court, if erroneous, was not prejudicial, for the reason that the evidence sought to be introduced would have shown with reference to the land in the portion of section 21 covered by the notes of the survey, and its position in relation to the Missouri river as contained in the following excerpts from Exhibit B: “Intersect the right bank of the Missouri river and set a meander post for corner fractional sections 21 and 22. * * * Intersect the right bank of the Missouri river and set a meander post for corner fractional sections 20 and 21.” These disclose that the-section was fractional and bounded by the Missouri river on one
The next assignment of error, the sixth, is as' follows: “The court erred in admitting in evidence the answer of Nathan Carter to the question of defendant, ‘How often were you in the habit of seeing the river, say, from the time you first came here thirty years ago up to the summer of 1866/ under objection of plaintiff.” This was a preliminary question and one by which it was sought to show the acquaintance of the witness with the river in its course, at or near the land in dispute, during the thirty years he had testified that he resided in the vicinity of it, and thus lay the foundation for the further testimony to be elicited from the witness in reference to what changes had occurred in the course or channel of the river during the time to which his attention might afterward be directed, and we think the interrogatory was a competent and proper one, and it was not erroneous to allow it to be answered.
The only other assignment of error to be considered is that the verdict was not sustained by the evidence. The plaintiff in the court below introduced deeds and other evidences of title in himself to the southeast quarter of section 21, in township 18 north, of range 12 east of the 6th principal meridian. The laud in controversy is the north half of the above described tract. The plaintiff
In the case of State of Nebraska v. State of Iowa, 12 Sup. Ct. Rep. [U. S.], 396, in which the boundary line
The first changes in the course of the channel of the river, as shown by the testimony of the witnesses in the case at bar, were such as clearly bring them within the rule which the foregoing quotation so aptly and ably sets forth or pictures in words. We will now leave this phase of the changes and turn to the one effected during the 70’s, when the river, at the time of a freshet or rise, cut through the bend on the Iowa side of the land in controversy and thus immediately changed its channel to the north and eastward of this tract of land, placing it apparently on the Nebraska side of the river. By this change, which is termed an “ avulsion,” the boundary did not change, but still remained the old, or De Soto, channel, and ownership of land remained in the party owning it at the time of the avulsion, and the owner of the land on the Nebraska side, to which it was apparently added or made contiguous, acquired no right or claim to it. We again refer to State of Nebraska v. State of Iowa, supra, where on this point it was held: “But where the change is of a sudden and rapid character, such as occurs when a river forms a new course by cutting through a bend, the boundary does not follow the change but remains in the middle of the old channel;” and Mr. Justice Brewer makes the following statement of the rule: “It is equally well settled that where a stream which is a boundary, from any cause, suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary, and that the boundary remains as it was in the center of the old channel, although no water may be flowing therein. This sudden and rapid change
Affirmed.