106 Neb. 466 | Neb. | 1921
This is a replevin action by plaintiff, Samuel M. Hickman, against defendant, 'Charles Jones, to recover a quantity of prairie hay. At the close of the evidence, at the trial in the district court, the defendant moved for a directed verdict, which motion was overruled. Thereupon
In the replevin affidavit the hay is described as “sixty tons of prairie hay standing in stacks on the north half of the northeast quarter and the north half of the northeast quarter of the northwest quarter, section 21, towniship 21, range 47.” There is some conflict in the evidence, and considerable doubt, as to whether the hay was -cut from that portion of section 21 above described, or whether it came from ground immediately to the north, Avhich would be on section 16 as originally surveyed. The ■conflict is not as to the identity of the hay, nor as to the ■spot from which it was cut, but as to whether that spot is to the north or to the south of the north line of section 21. Plaintiff has the fee title to that portion of section 21 from which he claims the hay was cut, which he derives by mesne conveyances from the holder of the patent from the United States government, and, at the time said hay was cut, he held a lease from the state of Nebraska upon section 16, which is a part of the public school lands granted to the state by the National government. The evidence shows that, according to the original government survey of the lands in that vicinity, section 16 lies immediately north of section 21.
It appears from the evidence that, owing to local disputes between landowners in that neighborhood as' to boundaries, the United 'States government, in about the year 1900, employed one Alt, a civil engineer, to make a resurvey and fix boundaries there, and that, in so doing, he located section 16 in such manner as to leave a considerable strip of ground lying between the north boundary line of section 21 and section 16, as he located it, and it was from this intervening strip, which defendant refers to as “no-man’s land,” that defendant cut the hay in dispute. Defendant claims to have procured from the government land office what he calls a “settler’s right,” under which he took possession of said strip of ground,
We think there is no merit in defendant’s point presented by his motion for a directed verdict, to the effect that the replevin affidavit locates the hay on section 21, whereas the evidence shows that it was located on section 16, and that, therefore, there is a fatal variance between the allegations and the proofs. There is no dispute here as to the identity of the hay, and this variance as to loca
The judgment of the lower court is
Affirmed.