35 Neb. 292 | Neb. | 1892
On the 1st day of August, 1888, defendant in error commenced an action in the district court of Merrick county to recover the possession of the strip of land described in his petition by metes and bounds. The plaintiff in error filed a motion to make the petition more definite and certain, which was overruled by the court, and an exception to the ruling was entered upon the record. After-wards an answer was filed, denying that defendant in error is the owner of the land in controversy, or is entitled to the possession thereof, and alleging that plaintiff in error has been in the open, notorious, exclusive, adverse, and uninterrupted possession of said strip of land, as owner, for more than ten years prior to the bringing of the suit. The reply is a general denial. There was a trial to a jury, with verdict and judgment for defendant in error. The jury also made special findings as follows:
“Question 1. Of the two surveys referred to by the witnesses, to-wit, that made by McLean, in the year 1869, and that made by Patterson in the year 1888, which one, if either, do you find was correct, and which survey, if either, fixed and established the true dividing line between' the premises of the plaintiff and defendant? Answer. The Patterson survey. I. H. Castle, Foreman.
Complaint is made in the brief of counsel for plaintiff in error of the overruling of the motion to make the petition more definite and certain, by “requiring the defendant in error to set forth therein by some definite, landmark or survey where the southeast corner of the northwest quarter of the northwest quarter of section 6, township 13 north, of range 5 west, in Merrick county, is situated.” Said corner is the point mentioned in the petition where the pleader starts to bound the tract therein described, and which is in litigation herein. The petition does not allege how said corner is marked, whether by a visible mound, stake or stone, nor was such an allegation necessary to enable a person, to locate the land in controversy. The motion was properly overruled.
No complaint is now made of the rulings of the court below on the trial, or of the instructions given and refused. But it is insisted that the verdict of the jury is not sustained by the evideuce, which .ejection we will now consider.
The parties own adjoining lands. The plaintiff in error is the owner of the southwest quarter of the northeast quarter and the southeast quarter of the northwest quarter of section 6 of township, 12, range 5, in Merrick county, and also lots 7 and 8 of said section. Defendant in error owns the west half of the northwest quarter and the west half of the southwest quarter of said section 6. The controversy is as to the location of the true line dividing their lands, each party claiming that the strip in dispute is within, the boundary lines of his land.
It appears in evidence that plaintiff in error entered all
One question remains to be considered. Has plaintiff in
As to the remainder of the strip which lies south of the quarter section line and west of said lots 7 and 8, there is a sharp conflict in the testimony bearing upon the question of Mills’s possession of the same. The above mentioned lots were taken by him as a timber claim in the fall oí 1877. The testimony introduced by plaintiff in error tends to show that prior to said year a few furrows had been plowed on the strip in controversy by a prior occupant of said lots 7 and 8; that in the spring of 1878 Mr, Mills planted a row of forest trees along the east side oí said strip on said plowing, about twelve feet apart; that subsequently he planted other trees between them, which are now standing and growing, and that during a portiom'bf the time since 1878 plaintiff in error has cultivated and farmed said plowed strip of ground. The testimony on the part of the defendant in error is to the effect'that the
Affirmed.