Feirbaugh v. Masterson

• Decision Date: 01 January 1867
• Citation: 1 Idaho 135
• Parties: M. Feirbaugh Et Al., Appellants, v. J. Masterson, Respondent.
• Court: Idaho Supreme Court

1 Idaho 135

M. Feirbaugh Et Al., Appellants, v. J. Masterson, Respondent.

Supreme Court of Idaho

January 1, 1867

POSSESSORY RIGHTS-PRIOR POSSESSION-EVIDENCE OF TITLE.-It is a well-settled rule in relation to possessory rights that prior possession is prima facie evidence of title.

PRIOR POSSESSION.-To entitle a party to hold by right of prior possession, there must be an actual, bona fide occupation, a possessio pedis, a subjection to the will and control.

IDEM.-It is not necessary that the occupant should cultivate the property claimed. It is sufficient if it be subjected to his use in the manner pointed out. Neither is any particular kind of inclosure required where a part is in possession of the land marked by distinct monuments of boundary whether the same be a natural or an artificial inclosure. Claiming title to the whole tract, the possession of the part so occupied will draw after it the possession of the whole.

PUBLIC LANDS-ACTUAL POSSESSION.-In relation to public lands which are not mineral lands, the title, as between citizens of the territory, where neither connects himself with the government, is considered as vested in the first possessor and to proceed from him. This possession must be actual, and not constructive.

PRIOR POSSESSION-ACTUAL POSSESSION.-Where reliance is placed upon the prior possession of the plaintiff, or of parties through whom he claims, such possession must be shown to have been actual in him or them. By actual possession is meant a subjection to the will and dominion of the claimant, and is usually evidenced by occupation, by a substantial inclosure by cultivation, or by appropriate use according to the particular locality and quality of the property.

NOTICE.-The lines were pointed out to the defendant by the plaintiffs with reasonable accuracy, and we see no good reason why actual notice is not equally as good, so far as bringing home to the defendant knowledge of the plaintiffs' rights are concerned, as that afforded by stakes or like monuments.

IDEM.-Having gone into the actual possession of a portion of the premises they were entitled to a reasonable length of time in which to inclose them. What this length of time should be must, for the most part, depend upon the particular circumstances and locality of each claim.

POSSESSION OF PART.-If a party were to locate and claim for agricultural purposes a tract of land, and were to reside upon, inclose, and cultivate a portion of the same, having artificial monuments sufficient to indicate generally the boundaries of the entire claim, this would most certainly be a substantial compliance with the rule, and such possession of a part would draw after it the possession of the whole.

ASSIGNMENT OF ERRORS-PRACTICE.-The supreme court will not scrutinize a voluminous transcript to ascertain whether the inferior court may possibly have committed some error to the prejudice of the complaining party, unless it should first have been assigned.

APPEAL from the Third Judicial District, Owyhee County. It is quite impossible to give a much fuller detail of facts than is contained in the opinion of the court. Reference is made in the transcript to a map of the premises as giving a very accurate description of them, the location of the "cabins," the amount and location of the fencing, etc., but this map was not sent up, or has been lost. Hence, all these facts were ascertained alone from the evidence of the witnesses as written down by the clerk on the trial.

Curtis & George, Miller, and Huggan, for the Appellants.

The supreme court in the state of California have held, in the following cases, that proof of prior possession is enough to maintain ejectment against a mere naked trespasser: Hutchinson v. Perley, 4 Cal. 34, 60 Am. Dec. 578; Hicks v. Davis, 4 Cal. 69; Winans v. Christy, 4 Cal. 78, 60 Am. Dec. 597; Bequette v. Caulfield, 4 Cal. 278, 60 Am. Dec. 615; Ramirez v. Murray, 4 Cal. 293; Norris v. Russell, 5 Cal. 250; Grover v. Hawley, 5 Cal. 486; Covillaud v. Tanner, 7 Cal. 39; Hayes v. Bona, 7 Cal. 153; Bird v. Dennison, 7 Cal. 302; Bird v. Lisbros, 9 Cal. 5, 70 Am. Dec. 617; Bagley v. McMickle, 9 Cal. 437; Plume v. Seward, 4 Cal. 96, 60 Am. Dec. 599. Henry Martin, for the Respondent.

CUMMINS, J.,

delivered the opinion of the court,

McBRIDE C. J., concurring.

This was an action of ejectment for the recovery of premises situate in Owyhee county. A jury having been expressly

waived by the parties, a trial was had by the court. The judgment was for the defendant, after which the plaintiffs move for a new trial upon the grounds:

1. That the findings of the court and the judgment thereon are against law.

2. For errors in law occurring on the trial and excepted to on the part of the plaintiffs.

This motion was denied by the court, from which order denying a new trial an appeal is taken to this court. The testimony was reduced to writing by the clerk by order of the court, and is incorporated in the record. The pleadings are in the usual form in actions of this character, plaintiffs alleging that they were in the quiet, peaceable, and exclusive possession prior to defendant's entry upon the disputed premises, which is traversed by the defendant.

It is contended by the appellants that the "findings of fact by the court below are against the evidence and unsupported by law." It is a well-settled rule in relation to possessory rights that prior possession is prima facie evidence of title. This principle is firmly fixed in the jurisprudence of the country. Much difficulty however, is often met with in the proper application of this rule to given cases. In this case it appears from the evidence that the plaintiffs went upon the tract of land described in their complaint, and which consists of about three quarter-sections, about the 16th of August, 1864; that several days subsequent to this they commenced inclosing this tract of land with a fence; that during this time they were residing upon the premises, and engaged at times in making shingles. After they had completed about three-fourths of a mile of their fence, the defendant came upon the premises, and after marking a few trees, had a conversation with some of the parties who were then claiming the land, at which time the plaintiffs notified him that they claimed the land; pointed out the fence they were then engaged in building, and further pointed out to him the general boundaries of their claim as accurately as they well could do. The defendant then requested one...