11 Nev. 171 | Nev. | 1876
Lead Opinion
By the Court,
This is an action to recover damages for an alleged trespass in cutting and carrying away wood and timber from a tract of six hundred and forty acres of land claimed by appellant.
' The real question presented by this appeal, wdiich is taken from an order of the court granting a nonsuit, is whether or not there was sufficient evidence as to the possession of the land by appellant and its grantors to authorize the court to submit the case to the jury.
The land is situate on the eastern side, or slope, of a mountain, and is valuable only for the wood and timber thereon. The ranch is cut up by ravines and canons, which in many places are very precipitous, and it is described as a “rough, rugged, rocky piece of ground,” over which “ timber grows in bunches.” There is a well-defined brush fence along the east line or boundary, and a similar fence on the north and south lines, from the'east line about half way toward the summit of the mountain, which is claimed
Without here entering into the details of the testimony, it may be stated, in general terms, that for more than one-quarter of a mile on the south line betAveen the bluff of rocks and the summit of the mountain there are no blazed trees to designate the boundary, and for a distance of twelve hundred and sixty feet from the southwest corner along the western line, over a smooth, grassy plot, to adopt the language of the Avitness Jenkins, “there is no monument, tree, or anything else to mark the line.”
Under the decisions of the supreme court of this state, a perfect in closure of timber land is not necessary. “If there be an occupation within boundaries so clearly marked' and defined as to notify strangers that the land is taken up or located, it is all the possession which the courts of this state have ever deemed necessary to require.” (McFarland v. Culbertson, 2 Nev. 282.) This principle was announced in a case, Avhere, to quote from the opinion, it was clearly shown by the testimony introduced by the plaintiff that the fence, Avhich consisted of felled trees, brush, and stone, Avas continuous and unbroken around the entire claim, except upon one side, where there Avas an opening of some few yards, but upon that side it joined a tract which Avas completely inclosed AA'ith the same character of fence.” The court, upon this testimony, said it was established beyond question that the fence distinctly marked the boundaries of the plaintiff’s claim, and held that: “That character of inclosure, together Avith the continuous occupation by the plaintiff, certainly constituted such a possession as would entitle him to recover in ejectment against any subsequent locator who had no title from the government.”
Under this liberal rule, the acts necessary to constitute possession, “must in a great measure depend upon the character of the land, the locality, and the object for which it is taken up.” (Sankey v. Noyes, 1 Nev. 71.) In every case where the plaintiff, as in this case, relies solely upon
. It is evident that the material facts elicited at the trial fell far short of meeting the requirements of these decisions. In the absence of a perfect inclosure, it is certainly essential that the boundary lines should be so clearly marked and defined that the same could be readily traced, and the extent of the claim easily known, and no stretch of imagination could be so extended as to authorize any court to hold that the boundary lines were so marked and defined around the land in question. How could a stranger crossing over the smooth, grassy spot designate the boundary? There is no fence, no string of brush, or felled trees, no mark or monument for a distance of one quarter of a mile. Almost the same condition of the boundary is found on the south line between the bluff of rocks and the southwest corner. A stranger in entering would discover no visible signs of any designation of boundaries Avhatever. The law does not require any speculation upon these points. The acts necessary to clearly mark the boundaries must be done in order to notify strangers that the land is located, otherwise any person would have as much right as the claimant to enter upon the land, cut the'wood and timber thereon, and take the same away. In such a case, both would b.e trespassers upon the public land.
The necessity of adhering to the rule .which requires the boundaries to be clearly marked and defined becomes apparent u¡3on an examination of . tire evidence in this case. It is claimed by appellant that the summit of the mountain constitutes a natural boundary, and that it was unnecessary to 2nark or define the west line. G. Collier Bobbins, who for several years claimed to have the control of the land, and who rode on horseback, without much difficulty, over and along the summit to see about the west line, says: “I
It is contended that the only object of an inclosure is to notify subsequent comers that the land is located and claimed and is being used for some beneficial purpose, and if that object can be fully obtained by any other means than building fences, or blazing trees, the intent of the law is satisfied. This argument is specious. A moment’s thought will expose its fallacy. If adopted, all that the claimant would have to do in order to accomplish the object would be to employ a sentinel to remain upon the land and notify every man who attempted to enter that it was located and claimed, and to point out the boundary lines. No one will pretend that this would be a compliance with the law. Even appellant admits the fact that the lines must in some manner be designated by visible boundaries, and to sustain its theory we find “bluff of rocks,” “bald mountains,” “summits,” “skirts of timber,” “slopes of the hill,” and “hillsides,” interjected from the lips of witnesses, to fill up the gaps unmarked on the pretended boundaries of the land. That bluffs of rocks may form a natural boundary is undoubtedly correct. The law does not require a vain and useless thing to be done, and there would be no sense in a law which required the erection of a fence over a bluff of
Appellant is equally unfortunate in its attempts to define the western line. Samuel Watson, who assisted in building the fence and blazing trees, defines what he considers a natural boundary, as follows: “If I was allowed to answer as I want to I would say the summit forms a natural boundary.” From his subsequent testimony it clearly appears that he was allowed to answer as he wanted to, and we have his full definition clearly given. “The proper meaning of the summit, to come right down to it, would be to come up near to the summit; we did not pretend to go in a straight line. * * * What I understand by a natural boundary is such that a man could not haul wood across with a profit.” This definition of a natural boundary is unique. It certainly cannot be found in any dictionary, nor sanctioned, we apprehend, by any decided case. If adopted, how would a stranger ever be notified that any tract of land was located or claimed ? Whenever he sees a brush fence on one line, he need not look for any marks, stakes, monuments, blazed trees, or fences, to designate any other
This is the general outline of the testimony, from-which it appears that the west line is marked and defined by the different theories of witnesses, adopted at various points as the emergency of any given locality may require. To illustrate : the summit of. the mountain, slope of the hill, and skirt of timber on the western line, for three quarters of a mile, is a natural boundary because you cannot drive teams over it. The smooth, grassy spot on the same line, for the other quarter of a mile, is a natural boundary because you cannot haul wood or timber over it with a profit. The same may be said of the west half of the north and south lines. But the unsoundness of the position contended for by appellant is still further demonstrable. In many places the wood on the ranch has to be cut on the hillsides and sledded down into the canons. It appears from the testimony that it is a common practice to pack wood from the mountains wdth mules and donkeys, and that this could readily be done without crossing any of the fences or roads erected by appellant, its grantors or predecessors in interest. We know of no rule that would compel a man to haul wood with a team when he could make it more profitable by employing other agencies. It is useless to comment further upon the testimony. Objections to its sufficiency could be multiplied and extended without limit, ad libitum. The fact is everywhere patent that the lines cannot be readily traced, nor the extent of appellant’s claim easily known, from any natural or artificial boundaries. The theory upon which appel- ’ lant bases its claim cannot be sustained upon reason or authority. The question whether wood or timber could be
Where a party enters upon land knowing the same to be a part of the public domain he is only entitled to recover as against a trespasser having no title, upon showing such facts as will be sufficient to raise a presumption of title in himself, and in cases like the one under consideration the presumption of title extends only to the actual possession,
The judgment of the district court is affirmed.
Dissenting Opinion
dissenting:
I think that, in this case, there was testimony sufficient to entitle the plaintiff to the finding of a jury on the question of possession, and therefore I dissent from the opinion of the court. There was ample proof that the plaintiff and its grantors had been in the notorious occupany of a portion of the tract claimed a long time before the defendant entered. They had built roads and cabins and felled trees. The only question was, whether the boundary of their claim was sufficiently defined to be readily recognized and traced. I quite agree with the court that- upon this point the case made by the plaintiff was a weak one* and particularly that' its theory of a natural boundary on the west, and on portions of the north and south lines is untenable. But there were one or two witnesses whose testimony as to the artificial boundaries was sufficient in my opinion to make out a prima facie case. Putting the most favorable construction on their testimony and taking it for true, it.proved that the east line was marked by a continuous fence, the north line by a fence half the distance and by blazed trees for the balance. Prom the northwest corner the west line ivas marked nearly three-fourths of its length by blazed trees, • and from the southeast corner the south line was marked half way by a fence and for the rest by a few blazed trees near the southwest corner. There was something over a quarter of a mile of the south line, and a little less than a quarter of a mile on the west line, not marked in any way, but it was the opinion of several of the witnesses that no man could have gone upon the ground and failed to see what land was claimed. It is true they differed among themselves as to the exact boundaries, and a jury might readily have differed from them all, but I think nevertheless, the question should have been submitted to the jury. The language of this court in the case of Sharon v. Davidson, 4 Nev. 419, seems to be exactly in point: “There was
I think the judgment should be reversed.