71 Neb. 444 | Neb. | 1904
The petition states two cause of action: The first, so far as is material at present, is substantially as follows:
That in 1896, under and by virtue of a contract of purchase with the owner thereof, the plaintiff entered upon and took possession of certain real estate, and continued to keep possession thereof under said contract of purchase until 1898, when he paid tin full amount of the purchase price, and the title in fee was conveyed to him by the owner; that the defendant’s road extends through and across the above premises, and on the 11th day of March, 1897, the defendant negligently and carelessly caused a fire to be set out by one of its engines, whereby a certain orchard on said premises was wholly destroyed and the plaintiff damaged in the sum of $355. The second cause of action is for damage for the negligent construction and maintenance' of a roadbed or embankment across a ravine, whereby the surface water is accumulated and thrown back upon the plaintiff’s land.
At the close of the testimony the court directed a verdict for the defendant, and the plaintiff brings error.
As to the first cause of action, the principal complaint of the plaintiff is based on the rejection of certain evidence offered by him to show sufficient title to enable him to maintain the action. The pleading and the proof show that he was not the holder of the legal title to the premises at the time the alleged loss occurred. Hence the case does not fall within the general rule stated in 13 Ency: Law (2d ed.), 432, to the effect that, in an action for damages for injuries to real estate, actual exclusive possession is sufficient evidence of titlé, unless the defendant shows an outstanding adverse title of higher dignity than a mere pos-sessory one. In other words the plaintiff having shown an outstanding title in fee simple at the time the loss occurred, bare proof that he was in possession of the premises at the time Avould not malee a prima facie case as to his right to maintain the action. He took the stand in his own behalf and testified that in 1894, and while his brother was the owner of the premises, he went into possession thereof— under what arrangement does not appear — and continued in possession until after the loss occurred, which was on the 11th day of March, 1897; that on the 24th day of December, 1896, and while he was thus in possession of the premises, he entered into a contract with his brother for the purchase thereof. He produced a letter which he testified to having received from his brother, which is as follows :
“Beloit, Wis.j Dec. 4, ’96.
“Dear Brother George : I received your letter of the 2, it found me well and I hope these few lines will find*447 you all the same. I will take $30 an acre, you will have to measure the land. I think there must he 107 acres they have no right to tax a man for land if he has not got it you send me $200 so I get it next week and the rest as you say in your letters. How many bushels of rye was there and what is it worth and how many bushels of corn is there and what is it worth. Is Kretzer there or have they moved away. I will close for this time. By by with love to all from your brother. Henry J. Gartner.”
He testified that this letter was in reference to the premises in question, that he and his brother had previous correspondence with reference thereto, and that he bought the premises on the strength of that letter which he called his contract; that he made his first payment on the land December 24, 1896, and completed his payments thereon in 1898, and thereafter received a deed of conveyance therefor from his brother. Two other letters from his brother were produced and identified, which the plaintiff offered to show were in regard to the same transaction. They are as follows:
“Beloit, Wis., Feb. 6, ’96.
“Dear Brother George: I received your letter of 2,’ it found us all well and I hope these few lines will reach you all the same. I am positive that I have made a deed to you for the land before we moved here on the north side of the R. R. You look up the reekords and see if not you will have to measure the land on the north side so I will now about how many acres there is so I can make the deed. You must have forgot tht I was to have intrist at seven per cent, for $1,000 from Dec. 1, 1896, till it is paid; you have only sent me $200 on the $1,000 in Dec. so it will be more than $870 till you get it paid, I will not be able to handle any corn for it is only fetching 25c a bu. here, will you tell Lewis send me the receipt to make the salve that he makes I have lost the one he gave me. I do not know what the Pentacosts are doing with Bain I think C. F. Nigh the Co. Tr. at Pawnee City is appointed ad*448 ministrator oyer the property there so I think he 'will see about Bain. Has Bain any winter grain on Pentacosts land. By by your brother with love to all.
“Henry J. Gartner.
“If I remember correctly I mad a deed to you that you was to pay $700 of the $1,700.”
“Beloit, Wis., Oct. 25, ’98.
“Dear Brother George. I received your letter and draft it found us all well as usual and I hope those few lines will reach you all the same enclosed you will find the deed. Mr. Livermore said it will he just as good as to make a new deed and save the expense and time of riting a new deed and as for you to sending the tax receipts they are of no use to me since you have bought the place. I wish you would go to Pawnee City and pay the taxes on my lot 4 and part lot 3 you no which are my lots and see if there are any back taxes and straighten them up and scan! the tax receipts and I will pay you and se if the little three corner on the north side of ihe R. R. right away and on the south side of the S. E. corner block of the village of Gartner is taxes separate, and are paid and about the land at Amboy Ill. I am not able io say anything unless I would go there; it will cost mo, about $6 car fare to go thair besides my time it will take perhaps about 2 days; I had a man tell me that it must be the worst kind of. marsh land for you can not get good land at any such figers. If you want me to look at that land I will tell you just what it is but you will have to give me the exact, description of the land and I will look it up. So by by from your brother with best regards to all. Henry J. Gartner.”
The deed was also produced. It appears to have been acknowledged on the 2d day of February, 1896, and to have been originally made to another party, whose name is erased and that of the plaintiff substituted. These several letters and the deed were offered in evidence and excluded; the offer of the plaintiff to show that the second and third
The objections to the introduction of this evidence are couched in the most general language, and seem to have been made and sustained on the theory that the evidence offered was insufficient to show a complete contract of purchase between the plaintiff and his brother. Had it been necessary for the plaintiff to show the precise terms and conditions of such contract, this evidence doubtless would have been insufficient. But such was not the, case. The question before the court at that time was not the precise nature of the plaintiff’s contract with his brother, but whether plaintiff’s title to the land at the time the loss occurred was sufficient to enable him to maintain the action. In his petition he alleged an equitable title, based on his possession of the premises under the contract for the purchase thereof, which would be sufficient title to enable him to maintain the action. Omaha & R. V. R. Co. v. Brown, 29 Neb. 492. The first letter contains an offer from the owner of the land of the terms upon which he would sell. The second is dated February 6, 1896, but from its contents it is clear that the date is a mistake and should be 1897. This letter shows that the owner of the land was preparing to execute a deed for the land to the plaintiff, and reminds him of the terms upon which payment is to be made. The third refers to an enclosed deed, and acknowledges receipt of a draft. Taking the letters and the deed, in connection with the plaintiff’s evidence that he entered into possession on the strength of tin first letter, and had fully paid for the land before he received the deed, and with his offer to show that the letters all refer to the land in question, it seems to us the evidence excluded would have strongly tended to show, to say the least, that the plaintiff at the time the loss occurred was in the possession of the premises under the contract with the owner for the purchase thereof, and should have been received. So far as the elec'd itself is concerned, the last letter shows that it was originally
As to the second cause of action, it is pleaded as a defense, and conclusively shoAvn in evidence, that soon after the construction of the roadbed or embankment, alleged to have caused the overfloAV of plaintiff’s lands and consequent damage thereto, the then oAvner of the lands from AA'hom plaintiff’s title to such lands is derived brought an action against the defendant and another, asking judgment on these causes of action, one of which was for damage for injury to a part of said lands by reason of the negligent construction of such roadbed or embankement, whereby surface water was thrown back and over the lands. In that action, judgment Avas given generally for the plaintiff, which was subsequently paid.
The general rule is that, where the obstruction causing
The obstruction complained of in this case is the same one that was alleged to have caused the damage in the former suit; it is of a permanent character, and one which will continue indefinitely unless interfered with by* the hand of man. It follows, then, from what has been said, that the entire damage to the land, past and prospective, was recoverable' in the former suit, and that the judgment rendered therein is a bar to the plaintiff’s second cause of action.
There is one point of difference in the petition in the former case and that in the present which requires notice. In the former, a total lack of provision for carrying off the water is averred; in the present, it is alleged in effect that no such provision had been made save a certain ditch, which, it is alleged, was of insufficient.capacity and fall to carry off the water, and which the defendant had permitted to become and remain obstructed. The ditch ivas constructed before the former suit was brought, and any faults in its original construction were part of the plaintiff’s case at that time. Hence, not only the negligent construction
By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is reversed and the* cause remanded for further proceedings according to law.
Reversed.