Tex v. Pflug, 24 Neb. 666

Tex v. Pflug

24 Neb. 666 | Neb. | 1888

Reese, Ch. J.

This action was instituted for thé recovery of a strip of land occupied by defendant, and which it is alleged is the-, property of plaintiff. ■ The trial in the district court resulted in a judgment in favor of defendant, and, to revérse which, plaintiff prosecutes error in this court. The land in dispute is about fifteen feet wide and eighty rods long,, and is on the division line between the north-east quarter of the north-west quarter of section 13, township 14, range 12 east, owned by defendant, and the north-west-quarter of the said north-west quarter, owned by plaintiff.

It appears from the bill of exceptions that, in the year-1864, defendant purchased the forty acres owned by him, and soon thereafter took possession of it. The next year, *668being uncertain as to its boundary lines, he caused the same to be surveyed and enclosed with a fence, the fence being placed upon the boundary lines according to the survey, where it has remained ever since. He immediately began the cultivation of the whole of the ground, and has continued to do so ever since, except that a part of it was planted in forest and fruit trees, and which he has not •cultivated by raising crops upon it. The whole has, how-ever, been in his possession, and in cultivation in the manner indicated, for near twenty years next prior to the beginning of the suit. During a part of the time of his residence upon the forty owned by him he has leased the north-west quarter of the north-west quarter of the section •(being the forty acres lying immediately west of his) from plaintiff’s grantor, and has pastured his stock thereon, and has perhaps cut hay on part of it, although the proof is not clear as to the latter. During all of the time referred to the land of plaintiff was uncultivated prairie. On the 8th day of August, 1885, plaintiff became the owner, and soon thereafter caused it to be surveyed, and upon such survey the line between the two forties was found to be .about fifteen feet east of defendant’s fence, and on the land •enclosed and occupied by him. Hence this suit for the possession of the strip alleged to be within defendant’s inclosure. The defense interposed is the statute of limitations.

It is claimed by plaintiff that defendant is not entitled to the land for two reasons: First. That having leased plaintiff’s land — which, it is insisted, includes the tract in •dispute — his possession has not been adverse or hostile, .and therefore the statute has not run. And Second. That he never at any time intended to claim more than was actually conveyed to him by his grantor, which was the north•east quarter, etc., and the fact that by a mistalce his enclosure extended over the line to which he sought to fence, would prevent the running of the statute.

*669As to the first contention, it is quite clear that in leasing the land now owned by plaintiff it was the purpose to lease only the uncultivated land lying west of defendant’s field. This was the purpose of the agents of plaintiff’s grantor, as well as that of defendant. We cannot see, therefore, how the rights of defendant could be affected by the contracts-of lease referred to.

As to the second proposition there might be more doubt, as it might be that in case of a mutual mistake as to the location of a partition line the statute of limitations would not interpose a barrier to a recovery to the true line. It is-apparent that the decision of the district court was not based upon any consideration of this question, and as, under the testimony, the judgment would have to be affirmed, whatever might be our views upon this point, we will not discuss it.

The testimony of defendant and his witnesses is to the effect that, in 1865, he caused his land to be surveyed and enclosed to the surveyed line; and from that time on he occupied, as owner, to that line, without reference to any other boundary. By his fence and his forest and fruit trees he, for nearly twice the period of the statutory limit, established his boundaries and claimed ownership to them. He testified pointedly to this fact. He took possession to the line fixed by the surveyor, and designated as his boundary by his grantor, and held with reference to it, and to nothing else. This being thé view adopted by the district court, and there being sufficient evidence to sustain it, the judgment cannot be molested. Brown v. Anderson, 90 Ind., 94. Bunce v. Bidwell, 43 Mich., 542. Seymour, Sabin & Co. v. Casli, 31 Minn., 81. Meyer v. Wigman, 45 Iowa, 579. Cole v. Parker, 70 Mo., 372. Metcalf v. McCutchan, 60 Miss., 145.

The judgment of the district court is affirmed.

Judgment affirmed.

The other judges concur.