The writer heard but a part of the argument in this case, but his associates heard it all, and agreed upon a decision reversing the judgment. The case was thereupon assigned to the writer to prepare an opinion, if, after an
The action was brought before a justice of the peace, by Connell against Galligher, to recover the possession of the “east half of lot number five in Griffin & Smith’s addition to the city of Omaha,” upon the ground that, on the 15th day of April, 1885, the plaintiff was in the actual and peaceable possession of said premises, and on said day the said “ defendant wrongfully and unlawfully entered upon the same, and with a strong hand did unlawfully and forcibly take possession thereof, and in like manner doth still detain the possession of such premises from said plaintiff.” On the trial of the cause before the justice, judgment was rendered in favor of Connell. The case was taken on error to the district court, where the judgment of the justice was affirmed, and from that judgment Galligher brings the cause into this court.
It appears from the bill of exceptions that, in March, 1882, James E. North executed a lease to Galligher, as follows:
“This lease, made and entered into this first day of March, a.d. 1882, by and between James E. North, by his attorney and agent, Geo. M. O’Brien, of the first part, • and Theodore Galligher of the second part, witnesseth: That the said party of the first part, in consideration of the rents,- covenants, and agreements hereinafter contained, to be paid, kept, and performed by the said party of the second part, hath demised, leased, and let, and by these premises doth demise, lease, and let unto the said party of the second part 31£ acres of ground, more or less, commencing at a point 15.56-jf chains north of the S. E. corner of the W. -J- of the N. W. J of section 28, town 15, range 13 east, in Douglas county, Nebraska; thence north 14.78 chains; thence westerly 20.09 chains; thence south 16.35 chains; thence east 20 chains, to the place of beginning, for the term of one year, with the preference
“ (Signed in duplicate.)
“James E. North,
11 By George M. O’Brien, his Agent and Attorney,
“ Theo. Galligher.
“ In presence of:
“E. M. Bartlett,
“Walter Bennett.”
This lease was duly acknowledged.
On the margin we find the following: “March 1, 1885. This written lease is hereby extended for all the land described therein to and until March 1, 1887, James E. North, by Geo. M. O’Brien, agent. Theodore Galligher.”
On the back of this lease is an assignment of the interest of Gallagher in this lease to one Eichard J. Colgin of “ the-two acres of land, more or less, situate in the south-east corner of the within described land, same being marked by some posts and wire in front, but open as a common. This-sale and transfer is only of my leasehold interest and possession of said land according to the terms of the within lease.”
This assignment is dated April 1, 1882. On the 8th day of April, 1882, Galligher assigned to Mary Colgin, the wife of Eichard J. Colgin, “his leasehold interest therein, and the land therein described and known as thePlousell tax title claim, except the two acres mentioned in the first assignment.”
Mr. Galligher testified as a witness in his own behalf as-follows:
Q. State who has been in actual use, occupancy, and
A. The date of the lease, what it is I don’t know— whether it is March, 1882, or March, 1883, that land was leased to me — and I have got papers to show by. General O’Brien put me in possession.
Q. . When?
. A. The date of this lease. He put me in possession under this lease.
Q. At the time this paper bears date ?
A. The lease was made out and signed, and he came tome and walked with me to the land and put me in possession.
Q,. Now, then, tell the court whether from the time that you thus went into possession, what you have done towards possessing the property from that time to this?
A. Then there was a man by the name of Colgin that it was leased to.
Q,. Who leased it to Colgin ?
A. I did, under this lease.
Q,. That was in writing?
A. Yes, sir; that was in writing.
Q,. Is that endorsed here ?
A. This is a copy. I guess it is on the original.
Q,. You leased it to Colgin ?
A. Yes, sir.
Q,. And your lease is in writing?
A. Yes, sir.
Q. Well, then, how long did Colgin remain there?
A. He stayed there during the year 1882 and 1883, and a part of the year 1884; I think it was some time in February, the date of the contract between Colgin and myself.
Q,. How long did Colgin remain there under you
A. Some two years and nine months.
Q,. When would that bring it that he left?
Q,. Now, then, since October who has been in the occupancy and possession of the premises?
A. I have been on it, and done some work on it.
Q,. Tell the court whether somebody else has been in possession?
A. Nobody that I know of; I never saw anybody.
Q,. Somebody has done some plowing on it?
A. Yes, sir.
Q,. Now, during the last two years, tell the court whether or not you have seen anybody interfering with your possession, or Colgin under you, and on this land?
A. Nobody has interfered with me, and nobody has • interfered with Colgin, except this suit which Connell brought against Colgin, which I had a copy of in my pocket.
Q,. Now, what do you know about a fence on the west and south side? Do you know when they were built, and what do you know about their being built?
A. -When Connell replevined this house from Colgin he paid some man to build this fence on the west of his land; it is not on his line at all.
Q,. The fence is not on this land ?
A. No, sir.
Q,. How is it about the fence on the north side?
A. It is about the same, just enough to be on the land that he claims under replevin.
Q,. The fénce that Mr. Connell put there is not on the line of this land?
A. No, sir.
Q. How is it about the fence on the south and east side?
A. This is a board fence which Mr. Morton and myself helped to build. On the east side there was no fence until I built one this spring.
Q,. And what kind of fence is there now?
Q. On the south side there is a board fence that you and Mr. Morton built?
A. My man Colgin, I didn’t do it myself, my man and Mr. Morton’s man, it is all the same.
Q,. When was that built, about when?
A. I don’t know, but it was built just about a year ago.
Q. You have told that you are there under lease from North; I ask yon if you occupy the lots, and if this is the original lease?
A. That is mine, I don’t know whether this is the original lease or a copy; it is on record.
Defendant offers lease in evidence, which is received without objection.
Q. Tell the court whether or not this lease, in the litigation of Peabody against Colgin and others in Justice Bartlett’s court, was offered in evidence?
A. It was.
Q,. And I ask you if in the suit of Housel & Co. against Colgin, in Justice Wright’s court, it was offered in evidence?
A. It was.
Q,. Who appeared as attorney for Peabody before Justice Bartlett?
A. Mr. Connell..
Q. And who appeared for Housel and Allen before Justice Wright’s court?
. A. Mr. Connell.
Q,. Is that lease of record?
A. Yes, sir.
Q,. What is that?
A. This is a copy of Mr. Ijams’ record, of judgment which Colgin obtained against Peadody.
Defendant offered in evidence the certificate of Mr. Ijams, clerk of the district court, showing that the case of
Q. When Mr. Colgin left, tell the court what he did, if anything, towards turning over possession of the premises to you?
A. He came to me and told me that he was going to leave, and that the property was mine; that he would surrender the property to me, and he wanted me to take possession of it, and in the meantime he took some of my stuff; I picked up the stuff and some was uj) at the house of General O’Brien, who turned it over to me.
There is an extended cross-examination, which does not materially change the testimony of the witness above given. Galligher is substantially corroborated by the testimony of General O’Brien, and other witnesses.
On behalf of the plaintiff below, Mr. Connell testified .as follows: “I am the plaintiff in this action, I know Mr. Galligher, the defendant ,and have known him for several years. The piece of ground in controversy in this suit I am personally acquainted with, and have been familiar with it for ten years or more past; it is. the east half of lot 5 in Griffin & Smith’s addition to the city of Omaha, and lays in the south-western portion of the city of Omaha, in Douglas county, a short distance this side of the poor farm, and contains about two acres of ground. The entire tract, a number of years ago, was lying open and unenclosed, the traveled road running over a portion of it. In the year 1878 Judge Wm. L. Peabody took possession of the ground, which was then unoccupied, by erecting upon it a post and wire fence, placing new cedar posts about every nine feet and attaching to the posts three or four or five 'barbed wires (am unable to state to a certainty the number), and also set out within the enclosure several hundred trees, a number of which were subsequently destroyed by fire, a number of the trees still existing and growing on •the place; a half lot to the west and two lots to the north,
“ Q,. When was that ?
“A. That was in 1883, except that prior to that it had been cultivated by Colgin under an arrangement with Allen, who then represented Peabody. Mr. Galligher, the present defendant, I never saw there, or knew that he had anything to do with the property until he interfered with my tenants a few weeks ago. I knew that he represented parties claiming adverse title, and that he occupied some of the lots to the west of all the property that I have referred, and is occupying that property now with the fence erected by Plousel & Allen on their west line running between the property taken possession of by them and the property occupied by him, this fence being the width of this tract of ground, to the west of this tract. The plat that I offered in evidence is in ink, the pencil marks upon it have been made by Mr.'O’Brien, to which I make no objection, but will say, with regard to the pencil marks in-
In his redirect examination he further testifies : “ I wish to state further that during the winter past, no one was in actual occupancy of the ground in controversy, nor was any one in actual occupancy until my tenants commenced to plow this spring.
“Q,. Who raised a crop on it last year?
“ A. There was no crop raised last year. Colgin, in the spring of the year, planted something there, but after the house was replevined the ground remained open, and I then exercised the right of ownership, and having control of the premises I removed the barb wires and nothing was taken from the ground in the fall of the year.
“ Q. How did you exercise the right of ownership— ■ mentally, or did you do it physically ?
“A. I exercised it physically, by having some brush cut.
“Q,. When?
“ A. Last fall.
“ Q,. About how much, a whip ?
“ A. I had my hand commence with an axe to cut it out, and intended to have him' complete it all, but other work prevented the completion of the work.
“Q,. How much work did he do ?
“A. He cut down some of the sumacs and took down some wires.
“ Q,. Is there any sumac on this ground, on the east half of lot five ?
“ A. There is some along the edges.
“ Q. Isn’t this sumac on your other property west of this lot?
“A. Yes, there is more along the west side than any other point.”
The writing which Mr. Connell received from Colgin
“Dated Omaha Neb., June 14, 1884.
“Witness: R. Colgin,
“D. L.' McGucicin. Mary Colgin.”
Mr. Connell, in his argument in the case, stated that in the course of the proceedings he caused Mr. Colgin to be put in jail, and that one of the objects of paying this money and obtaining the release was to prevent the possibility of an action for damages. Mr. Connell also introduced a copy of a notice from the city marshal of Omaha, requiring him to remove the barb wire from the half lot in question, and proof of a compliance with the notice. He also introduced proof showing that in the winter previous to the bringing of the action he had caused a small quantity of brush to be cut on said half lot and, on the day in which he is alleged to have been in possession, he procui’ed the plowing of a part of said lot. Upon the facts thus shown, can Mr. Connell maintain the action? We think not.
Section 1,019 of the code provides that, “Any justice, within his proper county, shall have power to inquire, in the manner hereinafter directed, as well against those who make unlawful and forcible entry into lands and tenements, and detain the same, as against those who, having a law
The action of forcible entry and detainer in this state is .a civil remedy, although to some extent criminal in form; thus the plea of not guilty shifts upon the plaintiff the burden of proof, and requires him to establish every material fact on which his right to recover depends. This includes the statute of limitations. At common law the limitation was fixed at three years, but our statute limits the time within which an action must be brought to one year. The testimony in this case shows that Galligher .and his subtenant, Colgin, had been in possession of the premises in question three years when this action was brought. It is claimed, however, that the rights of Mr. Connell date from the time of his alleged possession by •cutting brush in the winter of 1884 and 1885, and by the plowing which he caused to be done in the spring of 1885. .But such acts will not of themselves create a lawful possession. So far as this record discloses, the entry of Mr. ■Connell thereon was unlawful and forcible, even if it is admitted that he was acting under Peabody. There is no •evidence tending to show that Peabody had any title to the half lot in controversy. If he had such title, evidence •of it should have been introduced. A justice of the peace, while precluded from acting where the title is in dispute, has authority to receive deeds or other evidences of title fo show the right of either party to the possession. In this case, however, so far as appears, Mr. Peabody was a ■trespasser when he erected the fence in 1878, referred to in the testimony. It is difficult to perceive, therefore, in what manner Mr. Connell could derive any rights from
The judgment of the district court is reversed, and .the cause remanded for further proceedings.
Reversed and remanded.