279 N.W. 480 | Neb. | 1938
This is an action to quiet title to a strip of land situated between the adjoining farms of plaintiff, Maud Ohme, and defendant Frank Thomas. The land in controversy is a tract twenty-nine feet wide on the east end and eight and one-half feet wide on the west end, and it extends across the quarter-section wherein situated. In September, 1907, the husband and grantor of plaintiff, Maud Ohme, entered a United States government homestead on the north half of the southeast quarter of section 30, township 24 north, range 56, west of the 6th P. M. In October or November
Four errors are assigned in appellants’ brief, which, in view of the record, may properly be covered by a determination of the sufficiency of the evidence, and of the refusal of the trial court to allow full reimbursement under the occupying claimant’s act.
The trial court heard the witnesses, and visited the premises which are level with a southerly slope, and made an inspection of at least part thereof, and from the situation as indicated by the evidence, the entire terrain was then and there open to view.
Under the circumstances here presented, the controlling principle is, viz.: “While the law requires this court, in determining an appeal in an equity action involving questions of fact, to reach an independent conclusion without reference to the findings of the district court, this court will, in determining the weight of the evidence, where there is an irreconcilable conflict therein on a material issue, consider the fact that the'trial court observed the witnesses and their manner of testifying.” Johnson v. Erickson, 110 Neb. 511, 194 N. W. 670. See, also, Gentry v. Burge, 129 Neb. 493, 261 N. W. 854; Higgins v. Adelson, 131 Neb. 820, 270 N. W. 502.
The facts disclosed by the record bring this case within the well-established rule in this state that, where a fence is constructed as a boundary fence between two pieces of property, and where the parties claim ownership■' to the fence for the full ten-year statutory period, and are-not interrupted in their possession or- control during such
In this connection, possession may be adverse without any declaration of hostility against the true owner. City of Florence v. White, 50 Neb. 516, 70 N. W. 50.
And, again, the occupant’s intention at the time he-took possession is not necessarily a controlling factor. It is sufficient if possession is taken and the premises held actually, openly, notoriously, adversely, and. exclusively for ten years under a claim of ownership. Fitzgerald v. Brewster, 31 Neb. 51, 47 N. W. 475; Erickson v. Crosby, 100 Neb. 372, 160 N. W. 94.
The trial court denied relief to Frank Thomas for expenditures for the construction of the well on the disputed strip of land in 1934, for the reason that he “does not come under the occupying claimant’s act.” The evidence clearly disploses that defendants entered upon this land in, the character of ineursionists, and constructed the well wliile the plaintiff, the then owner of the land, was away from home, six years after plaintiff’s rights as owner thereof by virtue of ten years notorious, open, continuous, adverse, and exclusive possession had fully accrued, and at a time when circumstances prevented the present protection of her rights so acquired. Thus, necessary good faith lacking, it appears that the defendants do not come within the scope of the occupying claimants act. 31 C. J. 320; Davidson v. McDonald, 131 La. 1047, 60 So. 679; Wright v. Johnson, 108 Va. 855, 62 S. E. 948; Titus v. Poland Coal Co., 275 Pa. St. 431, 119 Atl. 540; Carter v. Brown, 35 Neb. 670, 53 N. W. 580.
As to defendants’ claim for taxes paid, a careful consideration of the evidence discloses that this claim is not
Therefore, it follows that the judgment of the trial court is fight, and it is
Affirmed.