Cassens v. Wisner
| Decision Date | 29 January 1932 |
| Docket Number | 28064 |
| Citation | 240 N.W. 526,122 Neb. 408 |
| Parties | ROBERT F. CASSENS ET AL., APPELLANTS, v. DORA WISNER ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for McPherson county: ISAAC J NISLEY, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. In determining the rights of an adverse owner, the entry and possession of his tenant, expressly authorized to act, is the entry and possession of such owner.
2. In obtaining title to ranch or grazing land by adverse possession, the tilling of a small portion thereof, the cutting of the hay from another portion thereof, and the pasturing of the entire remainder thereof, continuously year after year, by a duly authorized tenant, who lived in the same section and, for and on behalf of his landlord, had open, notorious, exclusive, and adverse possession thereof for more than ten years, is a sufficient possession in such owner to establish his title thereto.
Appeal from District Court, McPherson County; Nisley, Judge.
Action in ejectment by Robert F. Cassens and another against Dora Wisner and others, minors. Judgment in favor of the defendants, and the plaintiffs appeal.
Affirmed.
William E. Shuman and R. H. Beatty, for appellants.
Beeler Crosby & Baskins, contra.
Heard before GOSS, C. J., DEAN, EBERLY and PAINE, JJ., and WRIGHT, District Judge.
This is an ejectment action to recover the title and possession of 80 acres of land in McPherson county, Nebraska. At the close of the trial the jury brought in a verdict finding that the defendants were the owners of the east half of the southeast quarter of section 13, township 17 north, range 30 west of the sixth P. M., McPherson county, and were entitled to the possession of the same. The jury were duly polled, at the request of the plaintiffs, judgment entered on the verdict, and the motion for a new trial was overruled.
It may be stated that, while the bill of exceptions is quite long, there is practically no question of fact in dispute in the evidence in this case.
The 80 acres in controversy in McPherson county, together with 80 acres lying immediately east, across the line in Logan county, were taken as a homestead by William S. Rowsey, and after living upon the 80 acres in Logan county the required length of time, and making proof thereof at the United States land office at North Platte, a patent was issued to him, but never recorded. In the record there appears the photostatic copy of the duplicate patent retained in the general land office, showing that it was issued July 12, 1894. At about this date the said Rowsey left, never to return, and the first heard of him was when he gave a deed to the 80 acres in controversy to Silas E. Clothier, in Powder River county, Montana.
Robert H. Cassens, the father of the two plaintiffs, made a homestead entry upon the northeast quarter of this same section of land in 1900, and the land to which the title is in dispute is the east half of the southeast quarter in the same section. At the time Cassens made the entry and settlement, the county was still very sparsely settled. Boundary lines were uncertain, and were not fixed definitely until the government survey was made in later years. It was an open range country. At the time Cassens made his homestead entry, in 1900, Rowsey had been gone for six years, his improvements had disappeared, and the small amount of land that he had broken out had gone back to native grass and sod. Cassens by mistake broke out and cultivated 12 acres of land upon the 80 in controversy, and, as the land lay open and unused, he cut hay upon it and pastured it each year for 12 years, as a trespasser, but he never made any claim to the title.
Dewey Wisner, a ranchman, residing 40 miles away, purchased a tax sale certificate upon this 80 acres upon February 4, 1907, which tax sale included all taxes back to 1895, the year after it was patented, at which time it was first placed upon the tax lists, and Mr. Wisner paid the taxes for each year up to the time of his death in 1926. Neither Wisner nor Cassens personally knew the original entryman upon the land, William S. Rowsey. This land was light grass land, and 40 acres in the same section has always remained government land.
Five years after purchasing the tax certificate upon the land, Dewey Wisner wrote a letter to Cassens, in which he said he was paying the taxes upon this land, and asked Mr. Cassens to send him $ 14.42 for the use of the land for the years 1912 and 1913, and the letter Robert H. Cassens wrote in reply, upon December 13, 1912, reads as follows: Every year thereafter Cassens leased the land from Wisner or his widow, paying as high as $ 30 a year rental thereon. Wisner never saw the land but once, so far as the evidence discloses, and only then at a distance. A few years after he had been receiving rent for it, he came to the door of the Cassens home, in the same section, one evening, and asked where that 80 was that he was paying taxes on. These parties never met, so far as the evidence discloses, but upon two other occasions. The first time was when the Cassens drove 40 miles to see if they could buy the land. This was in October, 1918, when they had Jim E. Main drive them down to Wisner's ranch on the Platte river valley; and Mr. Main testifies that Mr. Cassens wanted to buy the 80 acres, and question No. 626 is as follows: "
The last time they met was in cattle-branding time of the spring of 1926. Their son took them down to Wisner's ranch again, and they found Mr. Wisner out by the windmill, and talked about buying the 80 acres, but "he said he didn't consider he had any title to it yet, so we let it go at that."
Robert F. Cassens and Lloyd E. Cassens, the plaintiffs, are the sons of Robert H. Cassens, who rented this land from the year 1912 until March 1, 1929, there being correspondence and other exhibits in the bill of exceptions relating to this period of uninterrupted tenancy of 17 years. Silas E. Clothier, who had received a deed of the land from Rowsey, dated February 11, 1927, deeded the 80 acres in question to the two plaintiffs upon March 23, 1929, and their ejectment action...
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