70 N.W. 269 | N.D. | 1896
Lead Opinion
This was an action in ejectment for a tract of land in Ransom County. The land is within the limits of the original grant made by congress to the Northern Pacific Railroad Company on July 2, 1864, and is in one of the old sections covered by the grant. Plaintiff claims title through mesne convey
We first notice the pleadings as they stood at the time of the trial. The complaint was exceedingly brief. It alleged that the plaintiff was the fee owner'of certain land (describing it,) and that defendant was in possession thereof, and wrongfully withheld the same, and that plaintiff had been damaged in a certain sum. The answer contained no denials, general or special; hence no denial of plaintiff’s ownership. True, it alleged ownership in defendant, which was inconsistent with ownership in plaintiff, but that conclusion of ownership was based upon certain allegations of fact in the answer, to-wit, an adverse possession by defendant for more than 20 years prior-to the commencement of the action. It is very certain that defendant never intended to deny that plaintiff held the record title. His purpose was to avoid that title
Since the defendant failed to establish by proof any of the allegations by which he sought to avoid the record title of plaintiff, it would seem to be immaterial if plaintiff did fail to make entire proof of such record title, or if the court erred in ruling upon the evidence offered for that purpose. But it is true that plaintiff did assume, in the first instance, to show his record title. Therefore defendant claims that the case was tided below upon the theory that there was a specific denial of the plaintiff’s title, and hence the court erred in refusing to permit defendant, after verdict, to file an amended answer denying plaintiff’s title. Defendant claimed that the proffered answer represented the issues upon which the case was tried. . The court refused to receive it. Under the circumstances, the matter was peculiarly within the judicial discretion of the trial court. The case must be very plain to warrant a reversal. But, had the amended answer been received, the judgment should have been the same. Plaintiff introduced all'the deeds to complete the chain of title
There were many exceptions to the charge of the court which are here not specifically noticed, but what we have said shows that none of them were well taken.
Judgment affirmed.
Concurrence Opinion
concurs in the result, without expressing any opinion on the point whether adverse possession can be initiated while land transferred by the government subject to a right of general occupation by an Indian tribe remains subject to such right.