21 S.D. 561 | S.D. | 1908
This is an appeal by the plaintiff from a judgment on a directed verdict in favor of the defendant. The action was instituted by the plaintiff to recover a tract of land embracing about 2t acres in the county of Minnehaha, and the value of the rents and profits of the same of $44, and $350 damages for withholding the possession thereof. The complaint is in the usual form, and alleges “that the plaintiff was the owner and seised in fee and possessed and entitled to the possession of that certain tract of land situated in Minnehaha county, described as follows, to-wit; * * * That while the plaintiff was 'so' seised and possessed the defendant, without right or title, and against -the will and against the consent of the plaintiff, entered into the possession of about 21 acres on the east side of 'said tract, and described as follows: * * * and ousted and ejected this plaintiff therefrom, and now unlawfully withholds the possession thereof from this plaintiff, to his damage in the sum of three hundred fifty ($350.00) dollars.” To this complaint the defendant filed answer denying each and ev
It is contended by the counsel for the defendant in support of the court's rulings in directing a verdict in his favor that there is no evidence in the record proving or tending to. prove that the plaintiff was the owner of any land in the section in question, or that the plaintiff was in possession of the tract of land or any portion thereof described in the complaint, or that the defendant ousted him, or that the defendant withheld the possession thereof, and that these facts being alleged in the complaint, and denied by the answer, the plaintiff was required to offer evidence proving or tending to prove the same, and that, failing to do so^ the court was fully justified in directing a verdict in favor of the defendant. An examination of the record discloses the fact that counsel for the defendant are right in their contention, as there is no testimony proving, or tending to prove, that plaintiff was the owner of the quarter section of land described in his complaint, was in possession of or entitled to the possession of the same or any portion thereof, and no evidence proving, or tending to. prove, that the defendant had ousted the plaintiff from any portion of said land or withheld the possession of the same from him.
It is also quite apparent frojn an examination of the record that there ivas no legal evidence that the line as claimed by the defendant between the southwest quarter and southeast quarter of section 3 was not the true boundary line between those two
The subject of the method of surveying and ascertaining the center quarter section corner of the section was very fully considered by the Supreme Court of Iowa in the analogous case of Gerke v. Lucas, 92 Iowa, 79, 60 N. W. 583. That learned court, after a review of the United States law and instructions of the Land Department and the state law, concludes its opinon as follows: “AVe are not at liberty to so construe the act of Congress as to
Finding no error in the record the judgment of the circuit court and order denying a new trial are affirmed.