No. 13,056 | Neb. | Nov 5, 1903
This is a suit instituted by plaintiff, John Flanagan, against numerous defendhnts who are the holders of the record title to various lots and blocks in Boyd’s addition to the city of Omaha. The material facts underlying the controversy are that, at and prior to the year 1866, Edward. B. Taylor was the record owner and in possession of the northeast quarter of the southeast quarter of section 4, township 15, range 13 east, in Douglas county, Nebraska. Some time during the year 1866, John Flanagan, plaintiff in this cause of action, took possession of this tract of land by consent of the record owner. Proof as to what the agreement was under which he took possession is very meager on account of the fact that- Taylor had departed this life before suit was entered to quiet this title, and, consequently, plaintiff Avas disqualified as a Avitness to the conversation AAdiich he had with Taylor at the time he Avent into possession of the land. The only evidence bearing on this question, contained in the record, is that of Edxvard A. Taylor, son of EdAvard B. Taylor, deceased, Avho testified that “He (meaning his father) told us that he put John (meaning plaintiff) in possession there; that he Avas going to garden there and in fact farm the land.” The only other evidence which may or may not properly throAV light on the understanding and agreement between the elder Taylor and plaintiff at the time possession was taken of the land was elicited from plaintiff’s Avife on cross-examination, who in answer to the question: “Now, did this all belong to the same party?” said: “Forty acres belonged to A. B. Taylor and he gave it all to John for John’s hire.”
In 1870, one of the defendants, James E. Boyd, purchased the record title to the east half of this tract of land on which plaintiff resided, and subsequently surveyed and platted this portion of the land as blocks 5, 6, 7, 8, 17, 18, 19 and 20, of Boyd’s addition to the city of Omaha, and duly filed his plat for record; that he subsequently conveyed many of the lots now in controversy to various defendants or their grantors. There is some evidence in the record that stakes were driven over the land by the surveyor when the survey was made, and defendants’ testimony tends to shoAv that the intersecting streets were marked by furrows plowed through the land. The ploAving of the land is disputed by plaintiff , and the testimony is not Arery certain on this question. There Avas also evidence that boards Avere placed on the streets in front of these lots advertising them for sale. Plaintiff, hoAvever, denies that he ever noticed any of these boards and says that he could not have read the notices even if they had been there. It clearly appears that, after the land was platted as an addition, plaintiff cultivated it continuously doAvn to the time of the trial of the cause in the court beloAv. The taxes on the land appear to have generally been paid by the record owners and not by plaintiff. Defendant, Hans P. Hansen, the record owner of lot 1, block 17 of the addition, appears from the evidence to have taken actual
The contention of appellants in this case is that the evidence, as a whole, shows that plaintiff was holding the land in dispute by permission and not adversely to the claim of the various record owners. We have examined patiently a voluminous record of testimony for the purpose of arriving at an independent conclusion as to what the evidence actually shows. With reference to the nature of plaintiff’s holding, this examination reveals the fact that plaintiff has occupied the lands now in dispute since the year 1866; that each year he has cultivated the lands in farm products and vegetables; that if any streets were marked out by plowing furrows through this addition, the plaintiff either did not notice such markings or deliberately plowed over the intersecting streets and alleys and has actually cultivated the entire tract of land for more than thirty years before the bringing of this action. In addition to this the evidence shows that plaintiff has conveyed a number of
Under this view, the next question to determine is Avhether or not the presumption of ownership arising from this long continued possession and use of the lands is overcome by evidence sufficient to show that the holding was permissive and servient to the title of the record owner. The only evidence in the record relied upon by appellants to sustain this claim is the testimony of E. A. Taylor that his father had said: “He (meaning his father) told us that he put John (meaning plaintiff) in possession there; that he was going to garden there and in fact farm the land.” While this evidence tends to show that plaintiff
Being satisfied that the judgment of the district court is supported by the clear weight of the testimony, we do not deem it necessary to determine what, if any, weight should be given to the testimony of plaintiff’s wife in answer to the question propounded to her on cross-examination. Her legal interest in the property in dispute clearly disqualified her from testifying against the administrator, executor or privies of the deceased with reference to the conversation with the deceased concerning this land, and whether this disqualification was fairly waived by the question propounded to her on cross-examination is very doubtful under the state of the record. Be this as it may, no error can be predicated on the admission of the testimony, as the cause was equitable in its nature and is brought here for review on appeal and not by petition in error. As we regard the evidence fully sufficient to establish the adverse nature of plaintiff’s holding through all the term of his occupancy of the lands, without considering the answer to this question, we recommend that the judgment of the trial court be affirmed.
For the reasons stated in the opinion, the judgment of the district court is
Affirmed.