City of South Omaha v. Meehan

• Citation: 98 N.W. 691,71 Neb. 230
• Decision Date: 17 February 1904
• Docket Number: 13,217
• Parties: CITY OF SOUTH OMAHA v. MARY MEEHAN
• Court: Supreme Court of Nebraska

98 N.W. 691

71 Neb. 230

CITY OF SOUTH OMAHA v. MARY MEEHAN

No. 13,217

Supreme Court of Nebraska

February 17, 1904

ERROR to the district court for Douglas county: CHARLES T DICKINSON, JUDGE. Reversed with directions.

Reversed and remanded, with directions.

A. H Murdock, for plaintiff in error.

C. R Scott and E. H. Scott, contra.

KIRKPATRICK, C. DUFFIE and LETTON, CC., concur.

OPINION

KIRKPATRICK, C.

This was an action to quiet title brought by Mary Meehan, defendant in error, against the city of South Omaha, plaintiff in error. There was judgment for plaintiff in the lower court; this proceeding in error being prosecuted by the city. Plaintiff, in her petition in the lower court, alleged that the property involved in this suit, and which was described fully in the petition, was her absolute property because of adverse possession in herself and her grantors. For answer, the city pleaded its corporate existence as a municipality under the laws of this state; that the property described in plaintiff's petition was the property of the city by dedication as a public highway; that the possession of plaintiff and her grantors was permissive and temporary, and so continued until the passage of an ordinance by the city making the erection of any structure on the public highway a misdemeanor, and the presence of any house or building on the streets and alleys a nuisance; that, since the passage of the ordinance referred to, the plaintiff and her grantors have been guilty of maintaining a nuisance, and could not acquire title under possession. For affirmative relief, the city asked that the premises be awarded to it, and that its absolute title in fee be decreed. The reply filed by plaintiff was, in effect, a general denial.

The facts shown by the evidence may conveniently be stated, so far as necessary, in the consideration of the errors assigned and argued by the city upon which it relies for reversal. The first contention relates to the sufficiency of the evidence to prove all the elements essential, under the decisions of this court, to title by adverse possession, particularly, that plaintiff failed to show that she had held adversely, with the intention of holding it as owner, for 10 years or more.

This action was commenced in May, 1900. Plaintiff went into possession of the premises under an instrument dated in September, 1897. This instrument is, in form, a bill of sale, by which Melissa Buckner, a widow, in consideration of the sum of $ 85 grants, sells, transfers and delivers to plaintiff "the following described goods, chattels and personal property, to wit: That one and one-half story frame cottage on the west line of 26th street on P street, and known as the Buckner property, in South Omaha. To have and to hold, all and singular, the said goods, chattels and personal property," etc.

There is sufficient evidence to establish that Mrs. Buckner, named as grantor in the instrument just referred to, built the house in 1886, and from and after that time, and up to the time of the transfer to plaintiff, had lived in the house and on the premises, during which period she maintained an open, continuous, exclusive and adverse possession thereof, claiming the property as her own. There is no conflict in the record as to the claim by plaintiff to the land on which the house stood, during the period of her occupancy after the purchase from Mrs. Buckner.

The contention based on this state of facts seems to be that, as the instrument from Mrs. Buckner to plaintiff only purports to transfer the title to personal property, goods and chattels, plaintiff succeeded only to Mrs. Buckner's rights to the property mentioned in the instrument, and therefore can not tack her own adverse possession to that of Mrs. Buckner. Our examination of the record leads us to the conclusion that there can be no question as to the intent of both parties, plaintiff and Mrs. Buckner, that the former should succeed to all the interest of the latter in the property in controversy. Nor do we see any serious difficulty in suggestion of counsel, that evidence as to the transfer to plaintiff by Mrs. Buckner of her rights to the land in dispute, tends to vary the terms of the bill of sale heretofore referred to. It is to be kept in mind that the claim of plaintiff is not based upon this bill of sale, which was introduced in evidence by defendant city, but rather upon an oral contemporaneous agreement, at the time of the making of the bill of sale, by which plaintiff succeeded to the rights of Mrs. Buckner in the land. We think it is well settled that the right of one person holding land adversely may be transferred to another verbally. Murray v. Romine, 60 Neb. 94, 82 N.W. 318. And if the testimony in this case is sufficient, and we think it is, to show that such transfer was made, then the possession of plaintiff may be tacked to that of Mrs. Buckner to make out her title by prescription. Lantry v. Wolff, 49 Neb. 374, 68 N.W. 494.

Plaintiff asked to have her title quieted in a strip of land bounded on the west by Railroad Avenue, sometimes called 27th street, on the east by 26th street, on the north by a line which would be made by extending the north line of P street from 26th street to Railroad Avenue and on the south by a similar line made by extending the center line of P street from 26th street to...