Brown v. Killabrew
| Decision Date | 01 August 1893 |
| Docket Number | 1,384. |
| Parties | BROWN v. KILLABREW. |
| Court | Nevada Supreme Court |
Appeal from district court, Humboldt county; A. E. Cheney, Judge.
Ejectment by J. R. Brown against H. A. Killabrew. From a judgment for plaintiff, defendant appeals. Affirmed.
L. A Buckner, for appellant.
M. S Bonnifield, for respondent.
Action of ejectment for the recovery of the possession of 160 acres of unsurveyed land. The court found in favor of the plaintiff and against the defendant. A motion for a new trial was overruled, and defendant appeals.
The plaintiff bases his right to recover upon prior possession and the fact that the defendant moved onto the land and occupied the house thereon with the consent of the plaintiff. The answer denies the plaintiff's possession and his right thereto; alleged that in the month of April, 1891, the defendant made a peaceable entry on the land described in the complaint; that he has had peaceable possession of said land ever since, with the bona fide intention of claiming the same as and for a homestead. The evidence in this case established the fact that the plaintiff purchased the possessory right of one Metcalf in 1889. At the date of said purchase the land was inclosed with a fence of posts and barbed wire. There was a dwelling house, stable, and cross fences on the land. During the year 1890 the plaintiff leased the land to the son of his grantor. In the spring of 1891 the defendant asked permission of the lessee of the plaintiff to move into the house on the land in controversy, giving as a reason that, if the water would continue to rise, it would drive him out of his own house; and, after obtaining the consent of the plaintiff, Metcalf, the lessee, told the defendant where he could find the key to the door of the house, and to move in as he (Metcalf) was going away. It also appears that the plaintiff and defendant cultivated a portion of the land in dispute; the plaintiff furnishing teams, seed, and farming implements against the defendant's labor. All other expenses were to be borne equally between them; the crops, when gathered, to be divided, share and share alike. This agreement continued during the years 1891 and 1892. In January, 1893, the plaintiff was informed that the defendant was claiming the land as a homestead, demanded possession of the same, and was refused; hence this action. The plaintiff never lived upon the land in person. After he purchased the possessory right and the improvements from Metcalf, Sr., he leased the same to Metcalf, Jr., who remained in possession as the tenant of the plaintiff until the spring of 1891, when he allowed the defendant to enter as above stated.
The principal question presented by the record in this case is the same as decided by this court in Nickals v. Winn, 17 Nev. 192, 30 P. 435, and Gonder v. Miller, (Nev., No. 1,338,) 27 P. 333. We are satisfied with the conclusions reached in each of the decisions, and they must be held conclusive of such questions. See, also, Rourke v. McNally, (Nev.) 33 P. 62, and authorities therein cited.
The appellant contends that the court erred in denying his motion to strike out the deed from Metcalf to plaintiff, which had been admitted in evidence; the grounds of objection being that, if the plaintiff claimed either under the federal law or intended to...
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