13 Nev. 398 | Nev. | 1878
By the Court,
This is an appeal from an order refusing to dissolve a temporary injunction — an order denying defendants’ motion for a new trial, and from the judgment. The action was brought to recover eight hundred dollars damages for an alleged trespass in digging a ditch over and upon the land described in the complaint, and running water therein. Plaintiff also prayed the court to enjoin the defendants from digging said ditch, from conducting water therein, and from committing any further damages upon the land described. The defendants were enjoined until further order of the court. After due notice, defendants moved to dissolve the injunction upon the complaint and answer. That motion was denied, and plaintiff obtained a verdict in his favor for one hundred and fifty dollars damages, for which sum judgment was entered against defendants, besides seven hundred and twenty-six dollars and thirty-five cents costs, and defendants were enjoined “from the construction of any ditches, and from the running of any waters, over, through, or upon plaintiff’s said land, and forever restrained and enjoined from further damaging said premises by the digging of ditches or the running of water as aforesaid.”
In his complaint, plaintiff alleges these facts only: “That
Counsel for plaintiff admit that the averments of the complaint in support of the injunction are. exceedingly defective; but they urge that, in the absence of a demurrer, they are sufficient after verdict and judgment for plaintiff, if the evidence sustains the judgment. Without deciding whether
1. Admitting, for the present, that plaintiff was. entitled to a judgment for one hundred and fifty dollars damage, was he also entitled to an injunction?
2. Was he, from the evidence, entitled to any damages ?
There are many reasons why the first question must be answered against the plaintiff, some of which will be stated. It by no means follows that the court would have been justified in enjoining defendants after verdict for plaintiff, even though the proof, had established the fact that plaintiff’s legal rights in the land were superior to the rights of defendants. (Wason v. Sanborn, 45 N. H. 171; Thorne v. Sweeney, 12 Nev. 254.) The land in question at the time the final injunction was granted, was a portion of the unsurveyed public domain. Plaintiff, has never taken any step to acquire title from the government. Under such circumstances there can be no doubt, that under the act of congress of July 20, 1866 (sec. 2339, U. S. Rev. Stats.), defendants had the right of way for the construction of their ditch over this land, subject only to the liability of paying for all damages or injuries done by them to plaintiff’s possession. By that section the right of way for the construction of ditches and canals upon the public domain, for agricultural and other purposes named therein, is acknowledged and confirmed. There was no testimony showing or tending to show that in the construction of their ditch, or in conducting •water therein, defendants interfered with, or injured, plaintiff’s possession, unless he was in possession of the land itself. They did not injure any crops, fences or other improvements. The allegation of defendants’ insolvency was fully denied by the answer, and there was no testimony tending to show that they were unable to respond in dam
Upon this point, then, our case is this: Defendants are enjoined from doing, upon the public domain, what the paramount law declares they may do, when they are able to pay all damages done, or that may be done, to plaintiff’s possession. It is a part of the act of congress organizing the territory of Nevada, that “no law shall be passed interfering with the primary disposal of the soil.” The injunction in this case did, indirectly, so interfere. It deprived defendants of a right acknowledged and confirmed to them. The court could not do indirectly what the legislature was expressly prohibited from doing. Besides, the injury is not irreparable. Pull compensation can be recovered in an action at law, if plaintiff has the superior title. Upon the question of damages plaintiff testified as follows: “In digging the ditch, defendants threw the earth out of it on the bank — the north bank. They also flowed water through it. With the ditch and the water, they have damaged me in a considerable sum of money. It is difficult to estimate the amount of damage. I think that, including what it would cost me to fill up the ditch, the damage is equal to the amount named in the complaint. Don’t think I could fill it up for less than a thousand dollars. I consider it a continuing damage as long as the ditch is there. * * * The water in the Burbank ditch is a damage to my ranch, in addition to cutting it up and making it more difficult to farm. It will cause willows to grow along the bank of the ditch after a time. That has been the effect produced by the West Walker river ditch.”
T. B. Smith, a witness for plaintiff, testified that "he thought the ditch was a damage to plaintiff’s land; that if he owned the land he would not have the ditch run over it for considerable money.” Defendants testified that they were in great need of the water; that they had no other source from which they could obtain water for irrigating their land; that if they -were deprived of its use, their crops would be entirely and hopelessly destroyed, and that they would be damaged thereby several thousand dollars in one season.
We now come to the inquiry, Avhether upon the undisputed facts of the case, plaintiff was or was not entitled to recover damages in any sum. The answer first depends upon the result of another inquiry, to wit: At the time of the alleged trespass did plaintiff have such title or possession as entitled him to maintain this action for injury to the land itself? If he did not, the condition of defendants’ title is a matter of no consequence.
As in ejectment, a rightful possession in the plaintiff is sufficient to enable him to maintain this action. (Rogers v. Cooney, 7 Nev. 217.)
At the trial plaintiff offered, and the court admitted, in evidence, two certificates of survey, known as the Hall & Simpson survey, made April 29, 1864, and the Mitchell & Fuller survey, made on the preceding day, which covered the land occupied by defendants’ ditch. They were made under the tenth and thirteenth sections of the statute of 1861, 267, entitled “An act to regulate surveyors and surveying,” which sections were repealed March 9, 1865. (Stat. 1864-65, 344.)
The certificate to the Hall & Simpson survey was made June 10, 1864, but it was not recorded or filed for record until November 22, 1865. The certificate to the Mitchell & Fuller survey was made June 19, 1864, but was not recorded, so far as the record shows, until April 9, 1877; that is to say, the only proof before us that it was ever recorded, is a certificate of the county recorder, dated on the day last named, to the effect that a certain paper marked “ Exhibit B” is a true and correct copy of the description and plat of the survey of land made for Mitchell & Fuller as appears of record * * * in his office.
Sections 10 and 13 of the statute of 1861, before referred to, read as follows:
“Sec. 10. Each county surveyor shall, within thirty days after completing any survey, make out a copy of the field notes and plat, and transmit one to the surveyor-general, and give a certificate of such survey to the person for whom it was made; * * and such certificate, provided the*406 same shall be recorded in the county record within thirty days after the delivery of such certificate, shall be evidence of the title of. possession to the person or persons holding the same.
“ Sec. 13. Such survey so made, except in cases of mining claims, shall be evidence of possession for one year from the date of record of such survey.”
The court instructed the jury as follows: “ The presumption of the law is, that the plat of survey of Mitchell <fc Fuller’s tract wras filed within the time required by law, there being no evidence to the contrary.”
It will be noticed that sections 10 and 13 were repealed before the Hall & Simpson survey was recorded, and there is no evidence showing that the Mitchell & Fuller survey was recorded before their repeal; also that the former was not recorded until long after the sixty days next succeeding the date of survey; and presuming the surveyor did his duty, that it was not recorded until long after the thirty days next succeeding the date of its delivery to Hall & Simpson. And to say the least, there is no proof that the Mitchell & Fuller survey was recorded within the time prescribed by the statute. Section 10 made the doing of certain acts, therein stated, evidence of possession, but the recording of the surveyor’s certificate- within thirty days from the date of its delivery, was made a condition precedent to its becoming such evidence. The burden of proof was upon plaintiff to show that they were recorded in time. The law may presume that the surveyor did his official duty and delivered his field notes, plat and certificate in time; but it does not' presume in the absence of proof showing such facts, that either Hall & Simpson, or Mitchell & Fuller filed them for record, or that they were recorded, within thirty days after delivery to them.
The court also admitted in evidence a deed from Hall & Simpson to Frank Hall, and another from ilie latter to plaintiff, conveying the land described in the Hall & Simpson survey. These deeds were offered “ for the purpose of showing title in the plaintiff from Hall & Simpson, through and under the survey offered, and to connect plaintiff with
They were further instructed that “ if they believed from the evidence that prior to 1875 it was a universal custom, well known and recognized among the residents of Smith’s Yalley, to claim and hold land by possessory right without in closure or fencing the same, and that defendants and plaintiff knew of such custom and recognized it, and claimed and held their lands under such custom; and that plaintiff occupied and claimed the land in question under such custom; and that afterwards, and about that time, the residents of said valley commenced to inclose and fence their lands:
It was proper for the court to admit any testimony tending to show that it was unnecessary to inclose the land in question; as that, in accordance with a custom universally acquiesced in, stock was herded by the owners during the growing and harvesting seasons. (Courtney v. Turner, 12 Nev. 350.)
But testimony showing that the farmers of the valley recognized and respected the boundaries of each other’s ranches, notwithstanding no boundaries were fixed or known, and although there were no inclosures, was inadmissible; and all instructions were erroneous 'which informed the jury that they might consider any well known and recognized custom known and acted on by the parties, as to the manner óf claiming and liolding'land by possessory title.
Trespass is an action for injury to plaintiff’s possession. The possession necessary as to public lands may be actual or constructive. If it be the former, in order to recover, he must show that he has performed such acts as are necessary in order to subject the land to his dominion and control — such acts as are essential to its beneficial enjoyment.
Constructive possession of such lands can be had only by a compliance with the possessory act of this state. An agreement or custom among the farmers of Smith’s Yalley prior to 1875, that they would respect the boundaries claimed by each, notwithstanding no boundaries were fixed or inclosures made, and that each might claim and hold by possessory title without taking the steps required by law, did not take the place of acts requisite in order to constitute constructive possession; nor did such agreement or custom excuse the failure to perform what was necessary under the
Although plaintiff did not attempt to show a compliance with the possessory act last referred to, he still urges that his possession and title are ample to maintain this action against defendants, for the following reasons: 1. Because plaintiff resided upon the land, cultivated twenty acres in alfalfa, and three acres as a garden; had a part actually inclosed with a substantial fence — that is to say, the twenty-three acres just mentioned, and held title of record to the whole, which extends his possession to the limits of his claim as defined by his deeds; 2. Because until 1874 the land was claimed and held under a general custom universally prevailing and recognized in the neighborhood, and after the custom ceased he proceeded with reasonable diligence to inclose his land with a substantial fence; 3. Because the land was sufficiently inclosed; and the boundaries marked, to create a possessory right.
Wo shall consider these three reasons in the order stated. The first is not good for the reasons given in Wolfskill v. Malajowich, 39 Cal. 280, and in Eureka M. Co. v. Way, 11 Nev. 182.
In answer to the second we shall add nothing to what has been said as to the effect of the custom or agreement between the ranchmen. But if it should be admitted, that until 1874 or 1875, such custom supplied the place of actual or constructive possession, still the testimony would not show that subsequent to that date, plaintiff either subjected the land over which the ditch was constructed to his dominion and control, or that he proceeded with reasonable diligence to do so. Under this head we content ourselves with the statement, that plaintiff did not have actual possession at the time of the alleged trespass, and shall defer an examination of the testimony upon the point until we consider the third reason above stated. It is necessary, however, to
T. B. Smith testified for plaintiff, that “ the latter had lived on the Rivers ranch since 1870 or 1871; that he had been away part of the time working for wages; that he supposed he did not fence his ranch because he was too poor.”
The above is all of the testimony of plaintiff, showing diligence, subsequent to the time the post-holes were dug, and a part of the posts set, two years or more prior to the alleged trespass.
Defendants’ testimony accords with plaintiff’s. They testified that “ after the placing of the posts two or three years ago, Rivers did nothing more to reclaim the land outside of the field and garden, until this spring (1877), when he grubbed out the sagebrush from eight or ten acres next west of the field, and about seventy rods southerly from the ditch; the posts have never been connected by any boards, wires or anything else so as to make a fence. When •we were digging the ditch, Rivers set up a few posts on the west side of the six hundred and forty acre tract — probably twenty in all.”
We have stated all the testimony tending to show diligence ; and in our opinion, instead of showing that he proceeded with reasonable industry to subject the land to his control, by the prosecution of such work as was necessary to
We now come to the third reason stated above in support of the claim that plaintiff’s possession was sufficient.
That an inclosure was necessary, subsequent to 1874, whether the land was used for agricultural or grazing purposes, is evident; and that in the absence of a proper fence, it was not subjected to the will and control of the plaintiff is equally certain. As we have seen from plaintiff’s testimony, other people’s cattle grazed upon the land whenever there were any in the valley; and there is no proof' that the custom of herding off the stock has existed for two years or more. S. M. Burbank testified that “the land claimed by plaintiff, for the last ten or twelve years had been used as a common for grazing purposes, without any objection being interposed that he ever heard of,” and his testimony was pot disputed.
We do not deem it necessary to follow the witnesses in
T. B. Smith, a witness for plaintiff, testified that plaintiff had posts set up, and post-holes dug, and ditches, to mark the boundaries; that the lines could be easily distinguished by these marks. But upon cross-examination he stated that he did not know the boundaries; that he had been over it very little; never saw or looked for any monuments; had never been around the six hundred and forty acres, and could not say how far it was inclosed, except the field and garden; had seen a few posts at the west end; didnotknowhow far the east end was marked by posts, monuments or fences other than the willow fence around the garden and field; that the land along the course of the ditch, though once cultivated, was then overgrown with sage-brush, grease-wood and rabbit-brush, and bore a strong resemblance to the outside lands; that the brush was not quite as large, though much of it was two feet high.
In my opinion the testimony would not have justified a verdict for plaintiff had the ground been timber-land and the action been trespass for cutting and carrying away timber therefrom. (Eureka M. Co. v. Way, 11 Nev. 174.) In such a case, it is established that an occupation within boundaries so clearly marked and defined as to notify strangers that the land is taken up or located is all that is
The injunction is dissolved, and the judgment and orders appealed from are reversed.