43 Neb. 241 | Neb. | 1895
This is an appeal from the district court of Gage county, the subject of the controversy being the line between lots 1 and 2, in block 64, in the city of Beatrice. We learn from the pleadings that there have been two surveys of said city, the first of which, or old survey, as it is designated in the record, was about the year 1857, and the new, or Smith survey, in the year 1872. The plaintiff is admitted to be .the owner in fee-simple of lot 2, while the title to lot 1 is, and has long been, in the defendants and their grantors. Both lots were improved with reference to the old survey, and while the boundaries thereof were still marked by the original stakes. There is situated on lot 2 a frame store building, erected in 1869 or 1870, the east wall of which is on the line as originally marked.' On lot 1 is a hotel
“The court being fully advised in the premises finds for the plaintiff, and that the said Charles G. Dorsey is and was, at the commencement of this action, the owner of lot 2, block 64, in the city of Beatrice, Nebraska, and of the*243 building situated thereon, and that said building was placed and located on said lot where the same now stands about the year 1869, and was located in accordance with the original survey and plat of the city of Beatrice as the same appears of record; and that the said Charles G. Dorsey and the grantors through whom he claims title have been continuously in the possession of the said building from the erection of the same until the present time. And the court further finds that no boundary line between said lot 2, in block 64, and lot 1, in said block 64, was ever agreed upon or settled and determined by the agreement and consent of said parties. The court further finds that about the year 1882 said plaintiff, by oral license, permitted the said defendant to excavate and lay a wall under the east side of his said frame building on said lot 2 an indefinite distance back along the line of said lot as determined by the survey of A. B. Smith in the year 1872, and during the year 1882 said excavation was made and said wall laid for the distance of from fifty to sixty feet southward from the north line of said lot, and that afterwards, and without the consent of said plaintiff, said excavation and the said wall were extended to the south line of said lot 2; and the court further finds that in the year 1888 said plaintiff recognized the line of said second survey by A. B. Smith as the boundary between said parties, in laying a sidewalk along the north line of said lot 2.
“ 2. The court further finds, as a matter of law, that said plaintiff is not estopped by the license given by him as aforesaid, nor by his recognition of said line of the survey of 1882 in the building of the sidewalk, from asserting his title and possession to the premises occupied by him and covered by his frame building as aforesaid, and that the plaintiff is the owner of said premises so occupied by him, and that such occupancy is in accordance with the original survey and plat of the city of Beatrice.”
It is deemed unnecessary to examine the evidence at
Erom a consideration of all the facts disclosed we are unable to perceive any ground for interference with the finding complained of. The rule which must govern this case has been so often asserted as to render further reference to it in this connection entirely unnecessary.
There is a further claim by the defendants, viz., that the plaintiff, on the showing made by the record, has an adequate remedy at law, and that equity is therefore without jurisdiction over the subject of the controversy. Two sufficient answers are suggested to that proposition: First, the same questions were presented by the defendants themselves in their cross-petition; and second, the objection comes too late when made for the first time as it is in this court. (See Sherwin v. Gaghagen, 39 Neb., 238.) The decree of the district court is accordingly
Affirmed.