Brown v. Feagins

• Decision Date: 29 June 1893
• Docket Number: 5171
• Citation: 55 N.W. 1048,37 Neb. 256
• Parties: DAVID BROWN ET AL. v. LEONARD B. FEAGINS
• Court: Nebraska Supreme Court

55 N.W. 1048

37 Neb. 256

DAVID BROWN ET AL. v. LEONARD B. FEAGINS

No. 5171

Supreme Court of Nebraska

June 29, 1893

ERROR from the district court of Douglas county. Tried below before FERGUSON, J.

AFFIRMED.

C. A Baldwin, for plaintiffs in error.

John Q Burgner and Connell & Ives, contra.

OPINION

RYAN C.

This action was begun before a justice of the peace of Douglas county, by Leonard B. Feagins, against David and Frank Brown, the complaint reciting that on or about January 23, 1889, the said Browns unlawfully, forcibly, and with strong hand did enter, and thenceforward have held possession of the southeast quarter of the northeast quarter of section 31, town 15 north, range 10 east, 6th P. M., and that the said Feagins at the time of said entry, and ever since, had the right of possession of the said premises. Service of notice to quit was also duly averred in said complaint. A trial of this action for the forcible entry and detention of the aforesaid real property resulted in a verdict and judgment in favor of Feagins; whereupon the defendants appealed to the district court of said county. A trial in that court resulted as before, and the Browns bring the case into this court for review upon petition in error.

The evidence presented the facts with but little dispute--certainly none of serious importance. For some three years immediately preceding January 24, 1889, George Hill had claimed the ownership of the property in dispute, and incident to such claim, had maintained about the said premises a fence of rather doubtful efficiency. During the pasturing season of the year 1888, Feagins, as Hill's tenant, used the said real property for grazing purposes, for which alone it was suitable, removing the cattle when the grass became unfit for use. About Christmas of the year 1888 a gap was made in the enclosure by the falling of a portion of the fence. The posts and wires of which this portion had been constructed were afterwards covered by snow so that any person, so disposed, could easily drive a team through the gap into the enclosure. The plaintiffs in error having previously procured a quitclaim deed from the holder of a tax deed upon said premises, drove into the enclosure over the fallen portion of the fence above mentioned on January 24, 1889, and with the help of two other persons, on the same day erected a shanty, which said Browns at once occupied as a place of residence. Based upon this possession, reinforced by the claim that their quitclaim deed raised such a question of title as could not be investigated in this form of action, the...