74 Neb. 229 | Neb. | 1905
The former opinion in this case was not officially reported, but may be found in 5 Neb. (Unof.) 464. A rehearing was granted for further consideration of the contention of plaintiff in error that an action of forcible entry and detainer was barred by section 8 of the code. The facts in the record necessary to a determination of this question are: That the defendant in the court below had been in possession as a squatter on a portion of one of the streets of the city of Omaha for about six years prior to the amendment of section 6 of the code in 1899; that subsequent to this amendment the city of Omaha conveyed the portion of the street in controversy by deed to the plaintiff, Union Pacific Railroad Company; that, after the receipt of the deed by the plaintiff from the city, it served in writing on the defendant a three days’ notice to quit, which- substantially complied with the provisions of section 1022 of the code. In about thirty days after the service of this notice, plaintiff below commenced its action against the defendant in forcible entry and detainer. The contention of plaintiff in error and defendant below is that the right to maintain the action of forcible entry and detainer accrued to the city of Omaha immediately on defendant’s taking unlawful possession of the portion of the street in controversy,' and that, as more than one year has elapsed since this right of action accrued to the city, it is barred by the provisions of section 8, supra, from maintaining this form of action, and that the railroad company by its deed from the city could take no greater right than the city had against the intruding defendant.
We believe that plaintiff in error is right in her contention that the grantee stands in the shoes of the grantor, and has acquired only such rights of action against her by reason of the deed as could have been enforced by the city of Omaha.
The city could have brought its action for forcible entry
The defendant claims title by adverse possession. We áre of the opinion that under the conceded facts this defense cannot be successfully maintained. It is clear that the statute of limitations has not run in favor of the defendant, since the time which it has held adversely to the railroad company cannot be tacked to the time during which she held possession adversely as against the city, prior to the enactment of the statute of .1899. The enactment of that law stopped the running of the statute, and created a hiatus in her adverse holding. The statute only began to run against the railroad.company at the time it acquired the title to the premises. This question, however, cannot be litigated in an action of forcible entry and
For the reason that the action of forcible entry was barred by the statute of limitations before this action was commenced, we recommend that the judgment of the district court be reversed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Reversed.