15 S.D. 344 | S.D. | 1902
This is an action to recover a small tract of land— less than one acre — in the westerly part of Lead City. The verdict and judgment were in favor of the plaintiffs, and the defendant appeals. The plaintiffs claim to recover the premises by virtue of prior actual possession.
Before proceeding to discuss the merits, we will notice a preliminary question. It is suggested on the part of the respondents that the questions presented by the appellant cannot be considered by this court for the reason that the notice of intention to move for a new trial does not specify the errors of law relied on. The notice for a new trial, however, states thát the motion would be made on
The' defendant denied the plaintiffs’ title, and pleaded facts constituting an estoppel, and a counterclaim for the value of the improvements, conceded to be about $800. The defendant seeks a reversal of the judgment on the following grounds: First, error in the instructions of the court; second, error'in the admission in evidence of notice of plaintiffs’ alleged location, and record of the same; and, third, error in the ruling of the court in excluding defendant’s evidence upon his counterclaim for his improvements.
On the trial the [plaintiffs offered evidence tending to prove that they took up a tract of land, about 250x250 feet, constructed a fence around the same, and erected thereon a small cabin, 12x14 or 14x16; that parties, by plaintiffs’ consent, occupied said cabin, and that the fences around (the same were kept in good repair, until 1896 or 1897, when the defendant entered on a part thereof and ousted the plaintiffs therefrom, and has ever since retained the same. The defendant introduced evidence on his part tending to prove that after 1893 or 1894 the fences around said lot were down, and the wires- and posts mostly removed therefrom; that the windows and doors of the cabin were broken in, and the same was unoccupied, except as a shelter for live stock roaming in that vicinity ; that the premises were all open to the public, so that teams could pass and repass over the same, and remained in this condition until
The court charged the jury, of its own motion, as follows: “You are instructed, gentlemen of the jury, that neither a good and substantial fence, nor a residence upon land, are necessary to a peaceable and actual possession. Fences are a means by which the possession of land may be taken and held, but are not the only means; for, as I have told you before, in an instruction given you at the request of the plaintiffs, there may be an actual possession without fences or inclosure of any kind, if there is an intent to occupy the premises. In this case, if you are satisfied by a preponderance of the evidence in the case that the plaintiffs, about the month of November, 1890, settled upon and took possession of a tract of land in the outskirts of Lead City, including the land in controversy, erected a dwelling upon such land, and inclosed the land with a fence, or otherwise indicated the boundaries sufficiently to indicate the boundaries of the claim, so as to clearly and openly indicate a claim to the property, and afterwards used the land so inclosed as a'place of residence for themselves, or either of them, or their tenants, and continued to maintain the boundaries sufficiently to clearly and openly indicate their claim to the property, and-while this land was so occupied by them the defendant, without permission or consent from them, or either of them, entered upon the land and occupied the ground in controversy in this action, and has since withheld the same from the plaintiffs, then your verdict should be in favor of the plaintiffs and against the defendant.” And the court gave the following instructions on request of the plaintiffs: “In-this action the jury are instructed that it was not necessary to the actual possession of the land claimed by the plaintiffs that they should keep the fence all the time in good repair, or so as to consti
It is contended on the part of the appellant that these instructions of the court do not state the law correctly as applicable to this case. He further contends that the plaintiffs could only recover upon his alleged prior possession by showing that the premises were inclosed by a good, substantial fence, kept in good repair up to the time of defendant’s entry, or by actual residence upon, or occupancy of the premises by themselves or tenants, with the boundaries of the premises well defined, and so continued up to the time of the defendant’s alleged entry. In this contention we are of the opinion that the defendant is substantially correct. The defendant at the commencement of this action was in actual possession of the premises in controversy, and presumably rightfully so; and this presumption could only be overcome by proof that the plaintiffs had the actual, exclusive, prior possession at the time the defendant entered upon the same. In Sabariego v. Maverick, 124 U. S. 261, 8 Sup. Ct. 461, 31 E. Ed. 430, the supreme court of the United States, in discussing .
It seems to be well settled by the authorities that a person seeking to hold a town lot must have the same inclosed by a substantial fence, or must occupy the same for some useful purpose. In Polack v. McGrath, 32 Cal. 15, the supreme court of California, in
On the trial the plaintiffs, after having proved, over the objection of the defendant, a custom of the people of Bead City to record such notices, offered in eveidence a notice recorded in the office of the register of deeds, in which the plaintiffs state that they claim
The defendant, in his answer, alleged that he was the owner, holding, under color of title and in good faith, adversely to the plaintiffs, a certain part of the premises described in plaintiffs’ complaint (giving a description of the same); that he had made valuable improvements upon said tract of land, consisting of a house and fence, of the value of $1,000 — and prayed that the value of the improvements might be determined, and that the plaintiffs be required to pay to said defendant such value. It is contended on the part of the respondents that this answer was insufficient to allow proof as to the value of the lot and improvements, but, in our opinion, the answer is a good pleading, and seems to have been so recognized by the plaintiffs in their reply, in which they admit that the house and fence referred to, aside from the lot, was of the value of $800; and they alleged that the value of the tract of land, aside
It is strenuosly contended on the part of the counsel for respondents that, while the plaintiffs may recover by virtue of their prior actual possession, the defendant, though he may have entered