38 Neb. 104 | Neb. | 1893
This is a suit in ejectment brought on November 9,1889, in the district court of Douglas county by Mrs. Charity
Mrs. Smith has no paper title of any kind for any part of the property. Her claim is based wholly on possession. The record shows that on and prior to 1869 this lot, No. 1, being 668 feet in length north aud south, and 218 feet in width east and west, was owned by Mrs. Annie M. Hitchcock. She died in 1887, and the lot by her will passed to her husband, the late Senator Hitchcock. He died in 1881, and the lot descended to his son, the defendant in error. About 1870, by permission of Mrs. Hitchcock and her husband, Mrs. Smith moved a small cottage she owned upon this lot 1, near the east line thereof, and lived in this cottage at that place until 1880. Mrs. Smith did laundry work from time to time during these years for the Hitchcock family and others. She also planted part of the ground near her cottage to a garden. During all these years the Hitchcock family, consisting of Mrs. Hitchcock, her husband, and the defendant in error, and others, lived upon the lot; had on it their barn, horses, cattle, and garden, and exercised exclusive ownership and control of the whole lot. During all this time it was all under one inclosure, built and maintained by the Hitchcocks; and that part occupied by Mrs. Smith’s cottage was in no other manner, than by the cottage itself, separated or severed from the remainder of the lot. Mrs, Smith, during this period, by the permission and consent of Mrs. Hitchcock and her husband, and as a kind of nonrentpaying tenant at will, or sufferance, also occupied her cottage on the lot. She paid no taxes. She exercised no act of ownership over the lot or any definite portion of it. Thus matters continued until 1880, when Mrs. Smith, by the permission of Senator Hitchcock, who then owned the title to the lot as devisee
In 1886 Douglas street, 66 feet wide, was extended west across the entire lot, leaving the first locution of Mrs. Smith’s cottage north of said street. After the extension of Douglas street, the defendant in error built fences on both the north and south lines of the street, thus dividing said lot into two separate inclosed portions; one being that part of said lot lying north of said Douglas street, and on which Mrs. Smith’s cottage was first located, and on which the Hitchcock homestead and the three tenant houses aforesaid are situate; the other portion being all of said lot 1 south of Douglas street, and on which portion is now Mrs. Smith’s cottage. No claim for damages was made by Mrs. Smith at the time of the extension of this Douglas street, nor did she assert or claim any ownership over the land taken for such extension, though now she claims that the land used for such extension was her property. She asserted no claim of ownership or title to any of the property at the time of the building of the tenement houses by the defendant in error.
Mrs. Smith, to recover here, must prove either a paper title or prove ten years’ open, notorious, exclusive, and adverse possession. She has no paper title. She occupied, by living in her cottage,.a part of this lot openly and no
But as a matter of fact or law, was Mrs. Smith’s possession of this property adverse? She entered by permission of the owner, and in 1880, by his permission, moved her cottage to another part of the same premises, hot involved in this case. To constitute her possession or occupancy adverse, she must have actually held and occupied the property as her own, and in opposition and hostility to the concurrent and constructive possession of the owner of the legal title. (French v. Pearce, 8 Conn., 439; Newell, Ejectment, p. 697, sec. 1.) There is no evidence in the record that establishes, or tends to establish, the fact that Mrs. Smith’s possession was an adverse one; nor that she entered into possession of these premises with the intention of claiming them as her own, or that she ever held after her entry in hostility to the defendant in error. Mrs. Smith’s entry on this lot was by permission of the owner of the legal title, and her possession thereafter was permissive and not adverse; nor could it become so until such time as she began to occupy under a claim of right, with notice of such claim brought home to the owner. (Harvey v. Tyler, 2 Wall. [U. S.], 328 ; Allen v. Allen, 58 Wis., 202-209; Perkins v. Nugent, 45 Mich., 156; Davenport v. Sebring, 52 Ia., 364; Pease v. Lawson, 33 Mo., 35; Smith v. Stevens, 82 Ill., 554; Angell, Limitations, sec. 354.) The court did not err in instructing the jury to find for the defendant.
Another error assigned is the overruling of the motion for a new trial on the ground of newly discovered evidence. To entitle the plaintiff to a new trial on account of newly discovered evidence, it is not enough that the-evidence is material. It must further appear that the applicant for a new trial could not, by the exercise of reasonable diligence, have discovered and produced such evidence at the trial. (Fitzgerald v. Brandt, 36 Neb., 683.) The proof fails to disclose such diligence on the part of the-plaintiff in error as entitled her to a new trial on the-ground of newly discovered evidence; but if it did, and the evidence now claimed to be newly discovered was put into the record, it would not change the result. A new trial should not be granted on account of newly discovered evidence when such evidence, if admitted, could not change-the result of the first trial. (Keiser v. Decker, 29 Neb., 92.)
The judgment of the district court is
Affirmed.
