72 Neb. 307 | Neb. | 1904
Lead Opinion
Plaintiff and defendant are the owners, respectively, of adjoining governmental subdivisions, or tracts of land. There is no dispute about the title of either, but the divisional line between them is a section line, and the government surveyor’s monuments at the corners of the sections have been effaced by time and the action of the elements, and the plaintiff, claiming that the defendant
The sole subject of the controversy is the location of the line and each party offered evidence in support of his contention, thus producing a sharp conflict in the evidence.
One of the instructions given, and excepted to, submitted to the jury the defense of 10 years’ adverse possession which was pleaded in the answer, but which was admitted on the oral argument to be without sufficient support by the evidence.
Another instruction, also excepted to, advised the jury that the plaintiff “must recover, if at all, upon the strength of his own title to the property in controversy and that he cannot rely upon any alleged weakness or want of title in the defendant, and if the plaintiff has failed to prove his title and right of possession to the land in dispute by a fair preponderance-of all the credible evidence, you must find for the defendant.” There were a verdict and judgment for the defendant and the plaintiff prosecutes error.
We think that both of these instructions were erroneous. From the former of them the jury had a right to infer, and perhaps did infer, that there was evidence sufficient to support a finding of adverse possession, and for aught that we know to the contrary, their verdict may be founded upon that supposition. It seems to us very nearly self-evident, that an instruction submitting to a .jury the affirmative of an issue which there is insufficient evidence to maintain, is prejudicially erroneous.
Eliminating the defense of limitations, as upon this record must necessarily be done, there is no question of title involved in the litigation. The sole controversy is about the definition of a boundary line and rights of possession dependent thereon. The latter of the foregoing instructions has no meaning applicable to this record, unless it is interpreted as requiring the' plaintiff to es
. For these reasons, it is recommended that the judgment be reversed and the cause remanded for a new trial.
For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded for a new trial.
Reversed.
Rehearing
The following opinion on rehearing was filed October 5, 1905. Judgment of district court affirmed:
The facts in this case are recited in the opinion filed at the former hearing, ante, p. 307. At the former hearing, the cause was reversed on account of the giving of two instructions, the first of which submitted to the jury the question of whether or not the defendant Campbell and his grantors had been in possession of the strip of land in controversy for 10 years prior to the time the action was begun. This instruction was held to be erroneous, mainly because it “was admitted on the oral argument to be without sufficient support by the evidence,” and it is said that
A re-examination of the record shows that while the evidence is conflicting, a number of Avitnesses testified to the adverse holding of the tract of land in question for more than 10 years by defendant and his grantors. The force of this evidence is weakened by testimony upon the part of the plaintiff’s Avitnesses, that for a part of the time rent Avas paid for the use of such land to the plaintiff, but the identity of the tract of land for Avhi'ch rent was paid with that claimed by the defendant is in dispute. The testimony of the defendant’s Avitnesses if uncontradicted would have sustained a verdict based upon adverse possession and this is sufficient to justify the giving of the instruction. The Aveiglit and sufficiency of the testimony wore for the jury. They may have disbelieved the testimony of one side and believed the other. It is true, that upon the first oral argument in this court, it was admitted by one of the counsel for defendant that the evidence was not very strong upon this branch of the case, but it Avas not conceded that the question Avas erroneously submitted. One of the theories upon Avhich the case was tried was that the defendant and his grantors had occupied the premises for the statutory period, and he was entitled to have that question submitted to the jury.
As to instruction number tAVO, requested by defendant, which is assigned as error, it is objected that the instruction so far as it advised the jury that the plaintiff must recover, if at all, upon the strength of his own title to
Objection is further made to the phrase “a fair preponderance of evidence” used in this instruction. The use of the expression “a fair preponderance of the evidence” has been repeatedly held by this court not to be reversible-error. M-urray v. Burd, 65 Neb. 427; Dunbar v. Briggs, 18 Neb. 94; Marx & Kempner v. Kilpatrick, 25 Neb. 107; Altschuler v. Coburn, 38 Neb. 881. We agree Avith the former opinion that the use of the qualifying word “fair” is inadvisable and not to be commended, but as the record stands in this case we cannot see wherein the jury were in anyAvise prejudiced thereby.
Instruction number eight, as to the weight to be given the original field notes, is complained of. Taken with the other instructions upon this point, Ave see no error therein. While perhaps its statements would not be sufficiently specific if standing alone, the instructions asked for by plaintiff, and given upon this branch of the case, supply what may be lacking in particularity.
Much the greater part of the evidence in the case, which consists of nearly 500 pages, is directed to the question of where the true original government corners upon the line between sections 15 and 16 were situated, and it is evident that this was considered the most important question in the case. We are satisfied that the attention of the jury
In the whole case, we find no error prejudicial to the plaintiff in error, and recommend that the judgment of the district court be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.