55 Iowa 734 | Iowa | 1881
On the 13th day of September, the jury returned a general verdict for the defendant, and also certain special findings. Thereupon the plaintiff' gave notice of a motion in arrest of judgment, for a judgment in his favor, and for a new trial. On the 14th day of September the plaintiff filed a motion for judgment in his favor on the special findings, notwithstanding the general verdict. On the 20th day of September this motion was overruled. On the 21st day of September the plaintiff filed a motion for a new trial. The appellee insists that the motion for a new trial was not made in time under section 2838 of the Code, and cannot be considered, and that, without a motion for a new trial properly filed, none of the errors assigned upon the giving and refusal of instructions can be considered.
We deem it unnecessary to determine whether the motion for a new trial was filed in time. Section 3169 of the Code provides: “ The Supreme Court may review and reverse on appeal any judgment or order of the District or Circuit .Court, although no motion for a new trial was made in such courts.” We are satisfied that this section authorizes a review, without a motion for anew trial, of rulings made during the trial, and excepted to at the time. • Appellee insists that, under section 3168, a motion for a new trial, or some motion for the correction of the error complained of, must be made in the court below, before the alleged error can be reviewed. This section is as follows: “A judgment or order shall not be reversed for an error which can be corrected on motion in an inferior court, until such motion has been made there and overruled.” This section, in our opinion, applies only to such errors as, without such motion, would not be called to the attention of the inferior court. As decisive of this question see Coffin v. City Council of Davenport, 26 Iowa, 515;
Twenty-sixth. In overruling plaintiff’s motion for judgment upon the special findings notwithstanding the general verdict. Twenty-seventh. In overruling plaintiff’s motion for a new trial.” The appellee insists that -these assignments are not sufficiently sj>ecific to present any question for our consideration. The objection is well taken. Reilly v. Ringland, 44 Iowa, 422; Morris v. The C. B. & Q. R. Co., 45 Id., 29; Oschner v. Schunk, 46 Id., 293; Tomblin v. Ball, Id., 190; Bardwell v. Clare, 47 Id., 297; McCormick v. C. R. I. & P. R. Co., Id., 345.
Section 3183 of the Code requires assignments of error to be filed ten days before the first day of the trial term. The amended assignment was filed on the 8th day of December, but the trial term for this case was not until the following June. The assignment was, therefore, in time, under the statute.
The appellant assigns as error the giving of the following instructions:
“ Y. It is not essential to the existence of actual, adverse possession of real estate that it should be surrounded by a fence, or that it should be built upon. But such possession may be inferred from the open, notorious, continuous and exclusive exercise of such acts of ownership, control and dominion with reference to the real estate as are usually exercised by the owners of lands over their lands of like character and in like situation and condition.”
“ YI. It is not every act of.ownership from which will arise such a cause of action as that the bar of the statute of limitations will begin to run against the owner of real estate. The bar of the statute, will begin to run only from the begin - ing of such open, notorious, distinct, exclusive, adverse, and hostile acts of ownership as are commonly exercised by the owners of lands over their lands of the same character, condition and situation.”
These instructions are a literal copy of those for the giving of which the cause was reversed on the former appeal. See 48 Iowa, 281.
That they are erroneous cannot admit of any question. The evidence shows that, from the time the plaintiff claims he first went upon the land to look for the corner until the following April, wild prairie land is not ordinarily put to any use. In order to bar the plaintiff’s right of action it must
The cases cited and relied upon by appellee, in which language similar to that used in these instructions was employed, were all cases in which the land was timbered, or had a stone quarry upon it, or was susceptible of some use or enjoyment in its wild state.
The appellee insists that in order to bar the right of action it is not necessary, that possession should be adverse, or hostile, and cites and relies upon Vanderyn v. Hefner el al, 45 Ind., 589. The contary doctrine has been uniformly and often held in this State.
VII. It is urged that the court should have sustained the motion for a new trial, on the ground that the verdict is not sustained by the evidence. All the ^cts of possession prior to December 28,1865, are set out in the fourth division of this opinion. They are, it seems to us, entirely insufficient to establish such adverse possession as is necessary to bar a right of action.
VIII. It is claimed that the court should have sustained the motion for judgment in plaintiff’s favor, on the special findings, notwithstanding the general verdict. It must be remembered that the answer admits that plaintiff is the owner of the legal title, and it is conceded he is entitled to recover, unless the right of action is barred by the statute of limitation.
The following special interrogatories were submitted to the jury, and answers were returned. “ If you find there were acts of occupancy on or prior to December 28, 1865, what were those acts?”
“ Nigging and hunting for a eornér and boundary lines, and driving cattle onto the land, and employing a man to break the land in the following spring.”
*740 “ For how many years prior to the commencement of this action had the defendant, George Rose, and those under whom he claims title, paid taxes on the real estate in controversy ?”
“ Sixteen, years.”
These are the only acts of possession which the jury find existed. They are not sufficient to bar the plaintiff’s right of action. The plaintiff, therefore, was entitled to judgment upon the facts found, in connection with those admitted in the answer.
Reverse».