191 P. 1083 | Nev. | 1920
Lead Opinion
By the Court,
This appeal is taken from a judgment in favor of the plaintiffs and against the defendant, and also from an order denying the defendant’s motion for a new trial.
Counsel for appellant insist that the trial court erred in denying appellant’s demand for a jury trial and in holding that the appellant, by his failure to demand a jury at or before the time the case was set for trial, waived his right to demand a jury. The exceptions to this ruling are: First, that the defendant was deprived of his inviolate constitutional right to a jury trial; second, that the defendant was not represented in court when the cause was set for trial, and had no knowledge or information that the cause would be set on the date it was set for trial; third, that when a party demands a jury before the trial takes place and the case is a proper one for a jury, the court is without power or authority to deny the demand.
“The right of trial by jury shall be secured to all and remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.”
The language that a “jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law” leaves the exercise of the right to a trial by jury to be regulated by legislation. Without some legislative regulation of it or provision for it, the right cannot be enjoyed at all. The constitution merely guarantees the right, and leaves to the legislature the duty of providing the means and methods by which the right is to be enforced. Copp v. Henniker, 55 N. H. 179, 20 Am. Rep. 194, 16 Standard Ency. Pr. 862.
The legislature of this state, in prescribing a general
“Trial by jury may be waived by the several parties to an issue of fact in actions arising on contract, or for the recovery of specific real or personal property, with or without damages, and with the assent of the court, in other actions, in the manner following:
“1. By failing to demand the same at or before the time the cause is set for trial or to appear at the trial.
“2. By written consent, in person or by attorney, filed with the clerk.
“3. By oral consent in open court, entered in the minutes.”
It is conceded that the cause was set for trial upon the application of plaintiff’s counsel without notice to defendant or his counsel; that the defendant did not demand a jury at or before the time the cause was set for trial, but made a formal demand for a jury at the time the cause was called for trial; and it appears from a colloquy which took place between court and counsel that the presiding judge was not informed that the defendant desired a jury until two days before the cause was called for trial, which had been set thirty days prior thereto.
This is an action to quiet title to 200 acres of land situated in Smith Valley, Lyon County. The controversy first arose over the ownership of the property in 1907, when A. W. Gander brought an action in the district court of said county against John W. O’Banion, Jacob E. Cohn, and Daniel C. Simpson, which resulted,
The appellant, Daniel C. Simpson, as adverse claimant to an equal undivided one-half interest in the land described in the complaint, appeals to this court from a judgment adjudging and decreeing plaintiffs to be the owners of the entire property, and perpetually enjoining defendant from asserting or claiming an interest therein, and from an order denying and overruling his motion for a new trial.
The history of the land is that'the Occidental Colony Company, a corporation, was the owner in fee of 5,300 acres of land situate in the counties of Douglas and Lyon, derived through mesne conveyances from the original patentees of the United States and the State of Nevada. In the year 1890 said corporation conveyed the entire acreage, described according to its legal subdivisions, it being surveyed land, to Joseph Neudelman and Ephraim Friedman.
The plaintiffs at the trial deraigned title from Joseph Neudelman, and founded their claim of ownership upon a deed of Joseph Neudelman and Fannie Neudelman, his wife, to John W. O’Banion and Zadoc Pierce, bearing date of the 12th day of November, 1901, purporting to convey, with ample covenants of seizin and warranty
The defendant at the trial deraigned title through mesne conveyances from Ephraim Friedman, and founded his claim of ownership to an undivided half of the property in dispute upon a deed of Jacob E. Cohn to Daniel C. Simpson, bearing date of September 3,1906, purporting to convey an equal undivided one-half of the 5,300 acres of land conveyed by the Occidental Colony Company to Joseph Neudelman and Ephraim Friedman.
The law is well settled here, and elsewhere, that a conveyance to a stranger of the title, by one cotenant, by an instrument purporting to pass the entire title in severalty, or a specific part thereof, by metes and bounds, followed by an entry into the actual, open, and exclusive possession by such stranger under a claim of ownership in severalty is deemed to amount to an ouster of the other cotenant, which if continued for the statutory period (five years) will ripen into good title by adverse possession. Abernathie v. Con. Va. M. Co., 16 Nev. 260; 7 R. C. L. sec. 48, p. 84; 1 Cyc. 1078; 38 Cyc. 34; Ann. Cas. 1915c (note) p. 1231.
All the authorities point to the conclusion that a conveyance of one cotenant, purporting to convey the entire property, coupled with possession by the grantee and notice to the cotenant, actual or presumed, or open, hostile, exclusive, and notorious acts of ownership, constitutes adverse possession which may ripen into a valid title by prescription. 38 Cyc. 34.
The complaint in this case is a short-form complaint as in an ordinary action to quiet title. Much to be
The facts developed at the trial are in substance as follows:
The land in controversy was located within a boundary of approximately 2,000 acres of fenced land in private ownership. Just what proportion of the acreage of the original common estate of 5,300 acres is located within the inclosure, other than the land in controversy, does not clearly appear. The land within the large enclosure was grazing land. It was, by reason of its particiilar locality and quality, unfit for cultivation or improvement, except in few instances. It appears that by usage, apparently permissive in its origin, all owners of land within the inclosure, who so desired, were allowed to graze the lands in Gommon during the grazing season of the year. During the remainder of the year, with but few exceptions, the lands were entirely unoccupied. It is fair to conclude from the testimony of the witnesses that, because of the shortness of the grazing season and locality and quality of the lands, it was not practicable for one owner to fence against another, and their live stock was allowed to roam and graze at large the entire area, unrestrained and unconfined, without reference to ownership or title. The boundaries of the holdings within the inclosure were not marked or defined in any manner upon the ground. In 1901 the lands were not in the open adverse possession of any person. The evidence tends to show that John W. O’Banion and Zadoc Pierce, well knowing the situation, quality, and condition of the land and the possible use of it by others for grazing purposes during the grazing season, purchased, for value, in 1901, a small segment of the common estate (280 acres) from Joseph Neudelman, for a purpose*199 different from that for which the lands within the inclosure were occupied and used. They, as evidenced •by their subsequent acts and conduct, visioned the possible reclamation of the particular land. It is fair to assume, from the small acreage and use made of the land, it was not purchased with intent to be used for general grazing purposes in common with owners of lands within the inelosure. The evidence is undisputed that when they entered into possession under their conveyance in 1901, they immediately inclosed 80 acres of their holding, then susceptible of immediate cultivation and improvement. The remainder (200 acres) was not inclosed. It was not susceptible of cultivation or improvement at that time. It was situated approximately a mile away from the 80 acres. It was adaptable at that time only for grazing purposes during the grazing season of the year. O’Banion and Pierce upon entry established a dairy business and erected a dwelling upon the 80 acres, which was occupied by O’Banion.'
From 1901 to 1907 O’Banion continued to reside upon and operate the dairy on the 80 acres, and used and occupied the uninclosed portion, now in dispute, openly and notoriously, as pasturage for at least 200 head of dairy animals, employed in his dairy business, during the grazing season of each year. It is conceded that during the rest of each year, from 1901 to 1907, the particular land was entirely unoccupied. The evidence tends to show that, while pasturing, the dairy animals
Plaintiffs subjected the land to their will and dominion by dealing with the property as their individual estate, paid the taxes thereon, and protected their possession of the uninclosed land as far as possible for them to do in its then condition, but did not prevent the defendant’s grantor, or the defendant’s or others’ live stock from roaming and grazing thereon while being pastured by them in the manner stated.
The evidence in rebuttal is that Jacob E. Cohn, defendant’s grantor, and others not disclosed, owning lands within the large inclosure, grazed the particular land, in connection with other lands owned by -them, during the grazing season of each year. It is admitted that the lands within the inclosure were so used without protest or interference during the grazing season of each year from 1902 to 1907, and that during the rest of each year the lands were entirely unoccupied.
The evidence tends to show that O’Banion offered Simpson, in 1914, $1,000 for his alleged claim or interest in the property, which was refused. It appears that when plaintiffs entered in 1901 the land was not in the open adverse possession of any person or persons. It is not denied that Jacob E. Cohn, defendant’s grantor, had actual knowledge that Joseph Neudelmán, prior to
From the foregoing statement of facts counsel for appellant draw several assignments of error:
“That this argument, to whatever cause attributable, could not have resulted from an examination of the reported adj udications on the subject.”
We do not evince surprise that learned counsel for appellant have failed to cite any authorities in support of the proposition. We, therefore, pass the assignment without further notice.
Since the early cases of Ellicott v. Pearl, 10 Pet. 442, 9 L. Ed. 475, and Ewing v. Burnet, 11 Pet. 41, 9 L. Ed. 624, it has been uniformly held that, in the absence of statute, neither residence, cultivation, improvement, nor inclosúre of land is necessary to support actual possession, where neither, the situation of the land nor the use to which it is adapted or applied admits of or requires such evidence of ownership. The cultivation, improvement, inclosure, and the pasturage of land not inclosed is, by the distinct affirmation of the statute, evidence of adverse possession, but the statute does not exclude evidence of possession manifested in some other appropriate manner. What the consequence would be of a failure of persons claiming title, not founded upon a written instrument, to inclose, cultivate, or improve the land, we are not called upon to inquire. Rev. Laws, 4959.
The argument that the respondents’ occupancy and possession of the property is not shown to be hostile to appellant’s title is clearly against the weight of the evidence. Entry by a grantee holding under a deed of conveyance for the entire estate, or a specific portion thereof, by metes and bounds, containing covenants of seizin and warranty, made by one of the cotenants and duly placed on record, has all the constituent elements of a disseizin at common law. Co. Litt. b. n. 1.
Such a conveyance as that here in question determines the quo animo with which entry is made under it, and gives character to the possession after entry made. Foulke v. Bond, supra. The entry of such grantee cannot be presumed to be that of a cotenant, nor in
It will not be denied that one of the most effective means of proving ouster is by showing the exercise of dominion over the land by the adverse claimant. 1 R. C. L. sec. 15, p. 703.
The evidence shows that the respondents at all times
The point is made that the grazing of the land by appellant in common with other owners of lands within the large inclosure destroyed the continuity of respondents’ possession. We are not in accord with this position. Respondents planted their flag of ownership on the ground in 1901. Its dominion waved over the entire area embraced by their conveyance uninterruptedly from 1901 to 1907. Taking into consideration the nature, character, and location of the property, and the use to which it was openly and notoriously put for pasturage during the pasturage season of the year, it being entirely unoccupied during the remainder of the year, the evidence tends to show that respondents protected their possession as far as it was practicable or profitable for them to do. It is true that they did not openly protest against the enjoyment of the property by appellant and others during the grazing season, but the open and uninclosed condition of the land is accounted for, and the participation by appellant and others in the- enjoyment of the property during the grazing season is explained.
Our ultimate conclusion on this branch of the evidence is that the appellant and Jacob E. Cohn, his grantor, were bound to take notice of respondents’ deed and entry under it into open, hostile, exclusive,' and notorious possession under claim of right and in severalty, known
The judgment and order appealed from are affirmed.
Concurrence Opinion
I concur.
Dissenting Opinion
I dissent.
Rehearing
On Petition for Rehearing
Rehearing denied.