Cerveny v. Thurston
| Decision Date | 06 December 1899 |
| Citation | 80 N.W. 1048,59 Neb. 343 |
| Parties | CERVENY ET AL. v. THURSTON. |
| Court | Nebraska Supreme Court |
1. Objections to the form of a verdict must be made at the time of its rendition, to be available in the appellate court.
2. A verdict for the plaintiff in ejectment, finding that he was the owner and entitled to the possession of “the property described in the petition,” is sufficient, as to description, when the property is clearly and accurately stated in such pleading.
3. One who has been in the actual, continuous, open, notorious, exclusive, adverse possession of real estate under claim of ownership for 10 years thereby acquires a perfect title to the property, which is not devested by the fact that another person thereafter occupied the premises under claim of right for a period of less than 10 years.
4. To acquire real property by adverse possession, it is not essential that entry should have been made under claim of ownership, if the occupancy was with intent to claim against the true owner.
Error to district court, Gage county; Stull, Judge.
Action by William Thurston against W. M. G. Cerveny and Mates Cerveny. Judgment for plaintiff, and defendants bring error. Reversed.Griggs, Rinaker & Bibb, for plaintiffs in error.
Geo. A. Murphy and W. C. Le Hane, for defendant in error.
William Thurston brought ejectment to recover a small strip of land, the petition containing the usual averments in an action of that kind. The defendants answered by a general denial, and also pleaded 10 years' adverse possession. This last defense was put in issue by the reply. Verdict was for plaintiff, and defendants have prosecuted error from the judgment entered thereon.
It is first insisted that the verdict was insufficient. No objection as to the form of the verdict having been made at the time it was returned into court, the point is not available here. Parrish v. McNeal, 36 Neb. 727, 55 N. W. 222;Roggenkamp v. Hargreaves, 39 Neb. 540, 58 N. W. 162;Crooker v. Stover, 41 Neb. 693, 60 N. W. 10. It is true, objection to the verdict was first made in the motion for a new trial, but this was too late to be of any avail. Brumback v. Bank, 46 Neb. 547, 65 N. W. 198. The verdict, however, was sufficient in form and substance, although a specific description of the real estate was not therein given. The jury, in their verdict, found that plaintiff was the owner of, and at the commencement of the action entitled to, “the strip and parcel of land described in the plaintiff's petition.” The real estate in controversy was specifically described in the petition, and the verdict referred to such description and made it a part thereof. This was sufficient.
Objection is made to the giving of the following instruction, tendered by the plaintiff: “(1) If you find from the evidence in the case that the plaintiff has a deed to the whole north half of the northeast quarter of section thirty-five, and that he used said eighty acres continuously and uninterruptedly, including the strip in question, for any considerable portion of the time during...
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- Cervena v. Thurston
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Larsen v. Sanzieri
... ... inception, but that the statute would commence to run as soon ... as such possession was adverse (Cerveny v. Thurston, ... 59 Neb. 343, 80 N.W. 1048), then it was still for the jury to ... say from Mr. Long's testimony whether that possession ... ever ... ...