51 P. 753 | Idaho | 1897
This is an action in ejectment. It is alleged in the complaint that on the twentieth day of December, 1890, the plaintiff (who is the respondent here), was the owner and seised in fee of the premises described in the complaint, and alleged ouster by the appellant, the Boise City Bail-way and Terminal Company, a corporation, on or about the twentieth day of May, 1893. The answer specifically denied the allegations of the complaint, except, however, it admitted that it wus in possession of the premises, but alleged that its possession was lawful, and also set up as a further defense the statute of limitations. By supplemental answer it averred that since the commencement of the action it had acquired title to the premises, and was the owner and entitled to the possession thereof. Upon the issues thus made, the cause was tried by the court and a jury, and a verdict was rendered in favor of the plaintiff, and judgment entered thereon. Appellant’s motion for a new trial was denied, and this appeal is from the judgment and order denying the motion for a new trial.
It appears from the transcript that pne J. H. Slater settled upon unsurveyed lands of the United States, and filed a notice of the land so claimed by him with the recorder of Ada county, the county in which said land was situated. Said land claim notice was filed for record on March 24, 1866.
The legislative assembly of the territory of Idaho, at its second session, passed an act entitled, “An act prescribing the mode of maintaining and defending possessory actions on the public lands in this territory.” (See 2d Sess. Laws 1864, p. 421.) The second section of said act provides the maximum number of acres which each claim may contain, its form, and how the boundaries thereof shall be marked on the ground. The third section provides that such land claim shall be accurately described in a written notice, which notice shall be recorded in the office of the recorder of the county wherein such land claim is situated. The provisions of said act were incorporated into the Bevised Statutes of 1887, sections 4552-4556, inclusive.
The government survey was extended over the lands included in said land claims in the month of November, 1867. Thereafter Slater, Davis, and Thompson adjusted their said land claims so as to make them conform to the lines of the public survey, by which adjustment said Slater secured lots 6 and 7 in section 10, township 3 north, range 2 east, of Boise meridian, and Davis secured lots 3, 4, 5, and 10 in said section 10, and said Thompson got lots 1 and 3 in section 9, and lot 8 and southwest quarter of the southeast quarter of section 4, said township and range. Thereafter said Davis entered said lots 3, 4, 5, and 10 under the pre-emption laws of the Bnited States, and a United States patent was issued to him therefor, which patent was received at the Boise City land office, December 23, 1869. Said Slater entered said lots 6 and
Several maps or plats of the land in dispute in connection with other lands are before us, some of which were introduced by the appellant, and some by the respondent. Map No. 16, an exhibit of the appellant, purports to show the said land claims of Davis, Slater, Thompson, and McClelland, and their boundaries; also to show the boundaries of the said pre-emption claims. The said land claims of Davis and Slater, both before and after they were adjusted to the public survey, adjoined Front street, in Boise City, on the southwest side. Said street extends north, fifty-five degrees west, as shown by the certified plat of the government survey. And I think that as said street extends north, fifty-five degrees west, instead of east and west, that fact may have been the cause of certain directions or calls stated in the deeds hereinafter referred to being ambiguous and uncertain. Said plat also shows that the west boundary line of said lot 6, near the southwest corner thereof, was intersected by a fence at the time the government survey was made, in November, 1867. Said plat also shows that a public road intersected said boundary line a short distance north of said fence. It also appears that Boise river is not to exceed a quarter of a mile from the southwest corner of said lot, and across which river was a ferry known as “Thompson and McClelland’s Ferry.” McClelland; one of the owners of said ferry, testified on behalf of the respondent in this case as follows: “I have resided in Boise City thirty-two years and over. I am acquainted with what is known as Lover’s Lane. It lies south and east of Boise City, near the intersection of Front street and Tenth, running southwest, as indicated on Map 16. Myself and Thompson owned what was known as Thompson and McClelland’s Ferry. The road indicated on Map 16 as being Lover’s Lane is the road known as the road to Thompson and McClelland’s Ferry since 1864. My house is a little west of the end of Lover’s Lane, next to the river. From the west of lot 6 my house is southwest, I think, about thirty or forty rods. One of the boundaries of my land very nearly intersects where Lover’s Lane intersects the west line of lot 6. The next land to the north and east of mine is Thompson’s.
Said Slater conveyed to one Fi. J. Curtis, by quitclaim deed dated February 4, 1869, a tract of land that appellant contends is included in the land in dispute. The following is a copy of said deed, to wit:
“This indenture, made the fourth day of February, in the year of our Lord one thousand eight hundred and sixty-nine, between James H. Slater, of Boise City, Ada county, and territory of Idaho, party of the first part, and E. J. Curtis, of the said Boise City, Ada county and territory, as aforesaid, the party of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of one dollar, lawful money of the United States of America, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has remised, released, and forever quitclaimed, ajid by these presents does remise, release, and forever quitclaim, unto the said party of the second part, and unto his heirs and assigns, all right, title, interest, present and prospective, to that piece or parcel of land situated in Ada county, I. T., and more particularly described as follows, to*703 wit: Bounded on the west by Dr. W. L. Thompson's land claim; on the south and east by J. H. Slater’s land claim; on the north and east by Front street, Boise City; and on the southwest side of the road leading from Boise City, to Thompson & McClelland’s Ferry, on Boise river, in said Ada county, and territory of Idaho, and containing ten acres of land, more or less. Relinquishing hereto unto the said party of the second part, his heirs and assigns, all and every claim, both in law and in equity, I have now or may acquire by reason of my preemption right or entry of any portion thereof, and to any part oi: parcel of said above-described land, which may be embraced, included, or covered by any patent I or my successors may obtain for said land and premises. Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest, and endowments property, possession, claim and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to the said premises, and every part and parcel thereof, with the appurtenances. To have and to hold, all and singular the said premises, together with the appurtenances, unto the said party of the second part, and to his heirs and assigns, forever. In witness whereof, the said party of the first part has hereunto set his hand and seal, the day and year first above written.
(Signed) “JAMES H. SLATER. [Seal.]”
E. J. Curtis took possession of certain land, including the land in dispute, under said deed, and held possession thereof until the fourth day of January, 1873, on which date he conveyed the same to John Lemp. Mr. Lemp testified on behalf of the appellant that, when he bought said land from Curtis, there was a house upon it, and a fence around the entire tract; that Lover’s Lane bounded said tract on the south; and that it fronted north on Front street. John Lemp held possession thereof until the sixteenth day of June, 1884, when he conveyed the land in dispute to the Oregon Short Line Railway, and said company and its grantees have held possession of the
Appellant contends that its title and right to the possession of said land is substantially as above stated; while the respondent claims title and the right to the possession of said land under and by virtue of the following conveyances: From Davis to Slater. From Slater, by his attorney in fact, John McNally, to A. 0. Miller, which deed is as follows:
“This indenture, made the eleventh day of November, in the year of our Lord one thousand eight hundred and seventy-five, between James H. Slater, of the city of San Francisco, state of California, party of the first part, and A. 0. Miller, of Boise City, Ada county, Idaho territory, party of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of six thousand ($6,000) dollars, gold coin of the United States of America, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, alien, remise, release, convey, and confirm, unto the said party of the second part, and to his heirs and assigns forever, all the following described pieces and parcels of land, situated in Ada county, Idaho territory, to wit: Lots Nos. six (6) and seven (7) in section ten (10), township No. three (3) north, range two (2) east, of Boise meridian, the same being land pre-empted under laws of the United States, by the party of the first part, January 28, 1868. Also the following described piece of land, being a part of Tot No. five (5) in section ten (10), township No. three (3) north, range two (2) east, of Boise meridian, commencing in the center of the road on southwest end of Ninth street, and southwest side of Front street, forty (40) feet south, sixty-five degrees east, from the
(Signed) “JAMBS H. SLATES, [Seal]
“By J OHN McNALLY,
Attorney in Fact.”
And, finally, deed from A. 0. Miller to J. W. Brose, the respondent, dated December 20, 1890.
The plaintiff testified on his own behalf, and, in regard to talcing possession of said land, he said: “I went into the premises repeatedly immediately after the-transfer of the deed, by passing and repassing over it; but I think that to do any work in the premises was in January, 1891. I never conveyed the premises, nor freely surrendered possession thereof, to any person.” And on cross-examination he testified as follows: “I
In support of the allegations of the complaint, the plaintiff tendered evidence of the title on which he relied, which is as follows: United States to Thomas Davis; Thomas Davis to James H. Slater; James H. Slater, by his attorney in fact, Mc-Nally, to A. 0. Miller; A. 0. Miller to J. W. Brose, the plaintiff. The appellant claims title by prescription, and also by deed from Davis to Slater; James H. Slater to E. J. Curtis; E. J. Curtis to John Lemp; John Lemp to Oregon Short Line Bailway; Oregon Short-Line Bailway and grantees to Boise City Bailway and Terminal Company, appellant. The evidence clearly established the adverse possession of said land in Curtis and Lemp from 1869 to 1884, a period of fifteen years. Title by prescription was thus acquired by Lemp in case his paper title was not valid. From 1869 to May 22, 1881, no payment of taxes was required in order to constitute an adverse possession to real estate in this (then) territory. As regards the paper title, the real contention is over the deed from Slater to Curtis. It is admitted that the description of the land conveyed by that deed is ambiguous. And respondent contends (1) that it does; not convey the land in dispute; (2) that, if it did convey the land in dispute, it, being a quitclaim deed, did not convey the
Ordinarily, a quitclaim deed does not .convey the after-acquired title of the grantor; but, where language is used in a quitclaim deed that clearly indicates that it was the intention of the grantor to convey the after-acquired title, that effect should be given to the instrument. The intention of the parties should be carried out. In the deed referred to, the grantor states that it is his intention to convey “all the right, title, and interest,” “present and prospective,” to the land conveyed, and relinquishes all and every claim, both in law and equity, that the grantor then had or should acquire by reason of his preemption right or entry. If Slater acquired the tract of land in dispute by reason of his said pre-emption entry, and said land is included in the Curtis deed, it was conveyed to Curtis thereby. The deed from Slater to Miller, whereby he conveys to Miller parts of said lots 5, 6, and 7, contains certain exceptions, one of which is as follows: “Also excepting and reserving therefrom a piece of land sold to E. J. Curtis by the party of the first part, February 4, 1869, which conveyance is recorded in the recorder’s office of Ada county, Idaho Territory, in book 3 of Deeds, on pages 432 and 433, bounded as follows: On east by land of W. L. Thompson, on south and east by land of J. EL Slater, on north and east by Front street, on south and west by road leading to Thompson & McClelland’s Ferry, containing ten (10) acres of land.” The deed from Slater to Miller, respondent’s' grantor, thus excepts from its operation the land
There is no substantial conflict of evidence upon the issues involved in this case. The deed from Slater to Curtis conveyed the subsequently acquired title of Slater to Curtis. The appellant has the legal title to the land in dispute, acquired by