31 Nev. 433 | Nev. | 1909
Lead Opinion
By the Court,
This is an action commenced by the above-named respondent against the above-named defendants to have said defendants ejected from certain premises, comprising about five and three-quarters acres of land situated upon the north bank of the Truckee River, and between said bank and the meander line of said river, in section 12, township 19 north, range 19 east, in the County of Washoe.
The defendant I. Packard appeared in the action, and filed a disclaimer of any interest in the premises in controversy, and the case as to him was dismissed. The defendant Wells filed an answer to the plaintiff’s complaint, in which he set up a right of possession in himself to the land in controversy. He alleged in his answer that he had acquired title to the premises as against the plaintiff and its grantors by adverse possession; further, that the land lying between the meander line and the north bank of the Truckee River was public land of the United States, upon which he had located two mill sites, and was then the owner and holder of such lands by virtue of said mill sites. Upon the part of the plaintiff there was offered in evidence the record copy of a patent of the United States to one Peter Countryman, conveying lots numbered 1,2, 3, and 4 of section 12, township 19 north, range 19 east, dated February 5,1869. Plaintiff claims title to the land in question under and by virtue of this patent, and by mesne conveyances from the said Peter Countryman and his grantees to the plaintiff. The Truckee River crossing, as it does, the
The defendant’s claim of right of possession to the land in-controversy by virtue of his mill-site locations may be determined by ascertaining what lands passed from the government under and by virtue of the Countryman patent. If the southerly boundary line, of said lots 1, 2, 3, and 4 is the north bank of the Truckee River at low-water mark, then the defendant could not, under any circumstances, have made a valid location of a mill site, for the reason that the land in question had ceased to be a part of the public domain. Counsel for defendant and appellant, however, contends that the meander line of said Truckee River is the boundary of the land conveyed by the government under the patent, and that the land between the meander line and the river remained a part of the public domain. That counsel is in error in this contention is well settled, we think, by the decisions of this and other state courts, as well as by the federal courts.
In Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838, 35 L. Ed. 428, the Supreme Court of the United States by Bradley, J., said: “The meander lines, run along or near the margin of such waters, are run for the purpose of ascertaining the exact quantity of the upland to be charged for, and not for the purpose of limiting the title of the grantee to such meander lines. It has frequently been held, both by the federal and state courts, that such meander lines are intended for the purpose of bounding and abutting the lands granted upon the waters whose margins are thus meandered, and that the waters themselves constitute the real boundary. (Railroad Co. v. Schurmeir, 7 Wall. 272, 19 L. Ed. 74; Jefferis v. East Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518, 33 L. Ed. 872; Middleton v. Pritchard, 3 Scam. 510, 38 Am. Dec. 112 ; Canal Trustees v. Haven, 5 Gilman, 548, 558; Houck v. Yates, 82 Ill. 179; Fuller v. Dauphin, 124 Ill. 542, 16 N. E. 917, 7 Am. St. Rep. 388; Boorman v. Sunnuchs, 42 Wis. 233, 235; Pere Marquette Boom Co. v. Adams, 44 Mich. 403, 6 N. W. 857; Clute v. Fisher, 65 Mich. 48, 31 N. W. 614; Ridgway v. Ludlow, 58
In Shoemaker v. Hatch, 13 Nev. 261, this court, in an opinion by Beatty, J., considering a question involving the land on the south bank of the Truckee River, and immediately opposite that- involved in this suit, held that "the watercourse, and not the meander line by which it is surveyed, is the boundary of the fractional subdivisions”—citing Railroad Co. v. Schurmeir, supra. The case of Hendricks v. Feather River Canal Co., 138 Cal. 423, 71 Pac. 496, presented a question practically identical with that here involved. Respondents had located mining claims between the meander line and the bank of the river, upon the theory that such land was public domain. The courts held the locations void, and affirmed the judgment quieting title in the lot owners, for the reason that the lots were bounded by the river and not by the meander line.
See, also, Kirby v. Potter, 138 Cal. 688, 72 Pac. 338; Turner v. Parker, 14 Or. 340, 12 Pac. 495; Schurmeir v. Railroad Co., 10 Minn. 82 (Gil. 59); 88 Am. Dec. 59.
The defendant’s claim to the right of possession of the premises in controversy by reason of adverse possession is little, if any, stronger than his claim to said land by virtue of his mill-site locations. The record discloses that one Samuel Brown came into possession of lots 1, 2, 3, and 4 of said section 12 by virtue of a written conveyance made in the year-1876, and recorded in the records of Washoe County. From that time, until his death on the 26th day of January, 1899,
Ever since said deed last mentioned, and at the time of bringing this action against said defendants, the plaintiff has been in the possession, and claiming the right of possession, under and by virtue of said last-mentioned deed. The record discloses that during the time the said Sardis Summerfield held the power of attorney of the said heirs and distributees of Samuel Brown, deceased, he paid the taxes for them upon, all of the land distributed to them, as aforesaid, which included the land in controversy. While the defendant’s answer alleges that defendant had paid all the taxes assessed against the land in controversy, he admitted upon the trial that he had never paid any taxes thereon, and made such allegation solely upon the theory that said land belonged to the government, and was not assessed. The record discloses that about twelve years prior to the institution of this suit the defendant Packard entered into the possession of a vacant cabin upon the land in controversy, and remained thereon, occupying the same as his home, until a short time prior to the institution of this action. It clearly appears, however, that Packard never at any time asserted any ownership to the land in question, but that he recognized the ownership thereof in the said Samuel Brown up until the time of his death; that he thereafter recognized that the said Sardis Summerfield exercised control and supervision over the same; that after
Shortly before the institution of this action, the said Packard made and executed a deed of the premises in controversy to the defendant Wells, but it is clear from the facts stated that the defendant Wells acquired no title by virtue of this deed, for Packard had none to convey. The record discloses that the defendant Wells first entered upon the land in controversy in September or October of 1900, and has since that time occupied a cabin upon said premises, which cabin was upon the property prior to his entry thereon; that he entered and began to live in said cabin by the consent of one Thomas Donnelly, who was living thereon by the consent of said Packard, who in turn was remaining on the property by the consent and sufferance of the said Samuel Brown and his successors in interest; that the defendant Wells did not openly assert any claim or right of possession to the property in controversy until after the plaintiff had purchased the land from the heirs of Samuel Brown, deceased.
We think it manifest from the evidence that the defendant Wells did not conclude to assert any claim or ownership to the property until he had concluded in his own mind that the land between the meander line and the river was public domain, and that he concluded then to assert rights of adverse possession because of this supposed discovery upon his part. Section 3709, Compiled Laws of Nevada, provides: "In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time prescribed by law; and the occupation of such premises by any other person shall be deemed to have been under and in subordination to the legal title, unless it shall appear: First, that it has been protected by a substantial inclosure; or, second, that it has been cultivated or improved in accordance with the usual and ordinary methods of husbandry; provided, that in no case shall adverse possession be considered established unless it be shown, in addition to the above requirements, that the land has been occupied and claimed for the period of five years, continuously, and that the party or per
Counsel for appellant assigns a number of errors in the admission of certain of the plaintiff’s muniments of title. The first of these assignments goes to the admissibility of the record of the patent from the United States to Peter Countryman. He asserts that such record was not admissible under the provisions of Comp. Laws, 2669. We need not consider whether it was admissible under the provisions of this section, as section 324 of the Compiled Laws makes specific provisions for the recording of such patents and the use of such record as evidence.
We need not go into an examination of the numerous objections made to the other instruments admitted, for we think they were admissible for the purpose of showing color of title in the plaintiff and its grantors at the very least. Color of title in the plaintiff and its grantors, taken together with the fact that the taxes upon the land were paid by the plaintiff’s grantors, and that the defendant Packard occupied the premises in subordihation to such title, and virtually as the tenant of the plaintiff and its grantors and predecessors in interest, made it impossible for the defendant Wells to acquire any adverse title, when it appears undisputed that the possession of the defendant Wells was subordinate even to that of Packard.
The judgment and order of the lower court are affirmed.
Rehearing
On Petition for Rehearing
By the Court,
Counsel for the appellant has filed a lengthy petition for a rehearing, in which he urges that this court should have passed upon the numerous objections and exceptions to the introduction in evidence of the plaintiff’s record title, which objections and exceptions were learnedly and elaborately argued in more than thirty pages of brief. Even if we were to hold, with counsel for appellant, that the proper foundation was not laid for the introduction of the record of the various instruments constituting the plaintiff’s paper title, and for
Upon the whole case, as finally submitted to the court, it is clear that plaintiff was entitled to judgment. The appellant Wells, in order to establish his alleged title by adverse possession, was obliged to rely upon the possession of the defendant Packard. He offered in evidence a deed from Packard, dated March 2,1907, to the premises in controversy. Packard, at the time of executing this deed, had no pretense of any claim upon the property, other than possibly that of a tenant. His testimony upon the trial was to the effect that he had recognized title first in Samuel Brown, secondly in the heirs of Samuel Brown, the immediate grantors of the respondent, and lastly in the respondent. On January 25, 1907, Packard signed and delivered to respondent the following writing: "Reno, Nevada, Jan. 25th, 1907- I, Ira Packard, for the priveledge [privilege] of occupying a certain cabin as a place of abode which is owned by the Reno Brewing Co., Inc., of Reno, Nevada, and is situated along the bank of the Truckee River and lying across the track of the Southern Pacific Railway Company, and immediately south of the plant of said Reno Brewing Co., Inc., do agree to look after said property and to vacate the same on the 1st day of May, 1907: Ira Packard.”
Subsequently Packard presented a claim to the respondent in the sum of $1,200 for his services in taking care of the premises for six or seven years. The fact that Packard is shown to have acknowledged the paramount title in the respondent, and that his possession was at the most only that of a tenant, and that Wells had no interest other than that obtained through Packard, was alone sufficient to entitle the plaintiff to recover. While proceedings of this character are commonly referred to as actions in ejectment, the same as an action for claim and delivery of personal property is usually referred to as an action in replevin, nevertheless it should be borne in mind that the action of ejectment, as recognized at common law, has been modified by statute in this state.
We need not consider, we think, the contention of counsel for appellant that the trial court should have sustained the motion for a nonsuit. Whatever, if anything, was lacking to establish plaintiff’s right of recovery at the time it rested its case, was certainly furnished by the testimony of the defendants. Where such a condition exists, the appellate court would not be warranted in reversing a judgment. (Power v. Stocking, 26 Mont. 478, 68 Pac. 857; City v. Lewis, 34 Wash. 413, 75 Pac. 982.)
The petition for a rehearing is denied.
