Adams v. Child

• Decision Date: 01 April 1905
• Docket Number: 1,660.
• Citation: 88 P. 1087,28 Nev. 169
• Parties: ADAMS v. CHILD.
• Court: Nevada Supreme Court

88 P. 1087

28 Nev. 169

ADAMS v. CHILD.

No. 1,660.

Supreme Court of Nevada

April, 1905

Appeal from District Court, Douglas County; M. A. Murphy, Judge.

Ejectment by John Q. Adams against Evaline A. Child.From a judgment of nonsuit, plaintiff appeals.Affirmed.

Alfred Chartz, for appellant.

Samuel Platt and D. W. Virgin, for respondent.

FITZGERALD C.J.

This is an appeal from a judgment of nonsuit in an action of ejectment.Plaintiff's complaint contained the following allegations:

"(1) That on the __________ day of __________, the plaintiff was and ever since has been seised in fee and entitled to the possession of those certain pieces and parcels of lands situate in Douglas county, described as follows: All that certain piece lying north of a certain fence used as a line fence by plaintiff and defendant, within the S. 1/2 of the S.E. 1/4 of section 34, township 14 N., range 19 E., and also that certain piece lying north of said fence within the N. 1/2 of the N.W. 1/4 of section 2, township 13 N range 19 E., all in M. D. B. and M., and containing 20 acres of land, more or less.

"(2) That about the year 1856plaintiff located upon then unsurveyed lands of the United States, and the predecessors in interest and grantors of defendant also located upon unsurveyed lands of the United States, and built said line fence described in paragraph 1, and that about the year 1863 said lands were surveyed by the government of the United States, upon the survey of which it was ascertained that said line fence did not correctly follow section lines, but cut off and left to defendant's predecessors in interest and grantors the lands described in paragraph 1, but that subsequently plaintiff obtained patents and became the owner in fee and entitled to the possession of all the following described lands.[Here follows description of land including land in question.]

"(3) That all the lands settled in Carson Valley, Douglas county, prior to the government survey, were settled in similar manner as the lands settled upon by the plaintiff and defendant's predecessors in interest and grantors, and the settlers thereof made similar mistakes with reference to their lines, and that upon surveys being made a general meeting of settlers was held, and it was agreed amongst them to square their lines in accordance with the public surveys at the pleasure of either dissatisfied party, at any time, and that said agreement has always been lived up to up to the date of this suit, and became the common law in the community where the lands of plaintiff and defendant are situate, and that plaintiff and defendant's predecessors in interest and grantors understood said agreement, and agreed to square their lines in accordance with said government surveys whenever deemed desirable by either party.

"(4) That on or about May __________, 1903, plaintiff began the planting of posts in accordance with said government surveys and in accordance with said agreement, and defendant and her agents forcibly ejected plaintiff from said occupation, and dug up and took away plaintiff's posts from their positions, and ousted and ejected plaintiff from his possession, and now unlawfully withholds the possession of the lands described in paragraph 1 of this complaint from plaintiff, to the damage of plaintiff in the sum of $500."

The foregoing allegations of plaintiff's complaint are all that are material in determining the questions presented upon this appeal.Defendant, by her answer, admitted the location of the lands of plaintiff and defendant, the erection of the line fence, the subsequent survey of the land by the government, and the issuance of patents as alleged by plaintiff, but denied that plaintiff was, or ever had been seised in fee, or otherwise, or entitled to the possession of the lands described in paragraph 1 of plaintiff's complaint, and denied particularly all the allegations contained in paragraphs 3 and 4 of plaintiff's complaint.Further answering, defendant averred that there was an agreement between the predecessors in interest of plaintiff and defendant that, when patents to the said land should be obtained, plaintiff's predecessors in interest should deed the said lands to defendant's predecessors in...