1 Idaho 135 | Idaho | 1867
delivered the opinion of the court,
This was an action of ejectment for the recovery of premises situate in- Owyhee county. A jury having been expressly waived by the parties, a trial was had by the court. The judgment was for the defendant, after'which the plaintiffs move for a new trial upon the grounds:
2. For errors in law occurring on tbe trial and excepted to on tbe part of tbe plaintiffs.
Tbis motion was denied bj tbe court, from wbicb order denying a new trial an appeal is taken to tbis court. Tbe testimony was reduced to writing by tbe clerk by order of tbe court, and is incorporated in tbe record. Tbe pleadings are in tbe usual form in actions of tbis character, plaintiffs alleging that they were in tbe quiet, peaceable, and exclusive possession prior to defendant’s entry upon tbe disputed premises, wbicb is traversed by tbe defendant.
It is contended by tbe appellants that tbe “findings of fact by tbe court below are against tbe evidence and unsupported by law.” It is a well-settled rule in relation to pos-sessory rights that prior possession is prima facie evidence of title. Tbis principle is firmly fixed in the jurisprudence of tbe country. Much difficulty, however, is often met with in tbe proper application of tbis rule to given cases. In tbis case it appears from tbe evidence that tbe plaintiffs went upon tbe tract of land described in their complaint, and wbicb consists of about three quarter sections, about tbe sixteenth of August, 1864; that several days subsequent to tbis they commenced inclosing tbis tract of land with a fence; that during tbis time they were residing upon tbe premises, and engaged at times in making shingles. After they bad completed about three fourths of a mile of their fence, the defendant came upon tbe premises, and after marking a few trees, bad a conversation with some of tbe parties who were then claiming tbe land, at which time tbe plaintiffs notified him that they claimed tbe land, pointed out tbe fence they were then engaged in building, and further pointed out to him tbe general boundaries of their claim as accurately as they well could do. Tbe defendant then requested one of them to go with him and point out more particularly tbe boundaries of their claim; but, after proceeding a short distance beyond the fence, tbe defendant declined going any farther, after wbicb be proceeded to inclose a tract of land included within tbe limits pointed out
The question now presents itself upon this state of facts: Did the plaintiffs have actual possession of the premises in controversy at the time the defendant went upon them, which was about the twenty-fifth of August, 1864? Was the occupancy of the plaintiffs at that time an actual, peaceable, and exclusive possession of the entire premises claimed by them, including that portion subsequently claimed by the defendant, such as is sufficient in law to entitle them to the exclusive enjoyment of the same as against every other claimant except the general government ?
The supreme court of California, in the case of Plume v. Seward et al., say, in relation to this subject, that “ there must be an actual, bona fide occupation, a possessio pedis, a subjection to the will and control, as contradistinguished from the mere assertion of title, and the exercise of actual acts of ownership, such as recording deeds, paying taxes, etc. This being the case, it becomes necessary to inquire, if a party who enters on land with no higher claim of title than that which the law presumes from his possession, is entitled to claim more than the quantity thus actually occupied by him. This question has been frequently decided in most of the western states, where entries have been made upon jmblic lands by persons unable to reduce the whole of the lands to actual occupation by fencing and cultivation. These entries have for the most part been made by settlers
And again the same tribunal held that “with the public lands, which are not mineral lands, the title, as between citizens of the state, where neither connects himself with the government, is considered as vested in the first possessor, and to proceed from him. This possession must be actual and not constructive, and the right it confers must be distinguished from the right given by the possessory act of tho state. * * * "Where reliance is placed, not upon the act, but upon the prior possession of the plaintiff or of parties through whom he claims, such possession must be shown to have been actual in him or them. By actual possession is meant a subjection to the will aiul.jkmAn.-irm of the claimant as is usually evidenced by occupation, by a substantial" inclosure, by"euTtivation, or by appropriate use, according to the particular locality and quality of the property.” (Coryell v. Cain, 16 Cal. 567.)
Applying the rule here laid down to the case at bar, we find that the plaintiffs had fully complied with all that is required by law in order to vest the right of possession in
In looking over the testimony, therefore, in this case, we are necessarily brought to the conclusion that the plaintiffs were in the actual and exclusive possession of the premises in controversy at the time the defendant entered upon the same. This conclusion is strengthened by the conduct of the defendant himself at the time. He was not only shown by the plaintiffs the boundaries of the claim they were then asserting a right to, or dominion over, but he .attempted to negotiate a purchase” of an interest in this ranch from one of the claimants, thus recognizing, to some extent, their right of control over and interest in the same.
. If we are correct in our construction and exposition of the law governing possessory titles, it follows that the court below erred in its finding as facts that the plaintiffs did not take possession of the premises set out in the complaint about the sixteenth of August, 1864, and were not entitled to the possession of the same at the time of the alleged ouster. These conclusions of fact are entirely unsupported by the evidence, or were, we might say, in direct opposition to it.
As this disposes of the case in this courtdt is unnecessary for us to inquire into the correctness of the rulings of the court on the trial to which exceptions were taken at the time. In fact, they have not been included in an assignment of errors, and we have just decided at this term in the case of The People v. John C. Page, that we will not scrutinize a voluminous transcript to ascertain whether the inferior court may possibly have committed some error to the prejudice of the complaining party, unless it shall first have • been assigned as such.
Judgment reversed and a new trial awarded.