Foltz v. Brakhage
| Decision Date | 14 April 1949 |
| Docket Number | 32583. |
| Citation | 36 N.W.2d 768,151 Neb. 216 |
| Parties | FOLTZ v. BRAKHAGE et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Ejectment is an action at law triable to a jury, unless the right is waived, notwithstanding any equitable matters presented in the case.
2. The effect of a stipulation of the parties for a transfer of an action at law to the equity docket of the court is a waiver of a trial thereof by jury.
3. Findings of court in a law action in which a jury is waived have the effect of a verdict of a jury and will not be disturbed unless clearly wrong.
4. Original corners, as established by the government surveyors if they can be found, or the places where they were originally established, if they can be definitely determined are conclusive on all persons owning or holding with reference thereto, without regard to whether they were located correctly or not, and must remain the true corners by which to determine boundaries.
5. When the owner of two contiguous tracts of land conveys one of them to a grantee and subsequently conveys the other to a different grantee, in a contest between the grantees concerning the boundary line between the two tracts, the subsequent grantee cannot, for the purpose of establishing title by adverse possession against the first grantee, tack his possession to that of the common grantor.
6. The statute of limitations does not run in favor of an occupant of real estate unless his occupancy and possession are adverse to the true owner and he has manifested an intent and purpose to claim title for himself against the true owner.
7. Title to land by adverse possession must be proved by actual open, hostile, and continuous possession under claim of ownership for the full statutory period.
Frederick J. Patz, of Lincoln, for appellants.
Perry & Perry, of Lincoln, for appellee.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is an action in ejectment brought by George Foltz, appellee, against Floyd H. F. Brakhage and Clarice Brakhage, appellants, to recover possession of a tract of land south of and adjacent to the north line of a quarter section of land owned by appellee.
Appellee alleged that he was the owner and entitled to possession of the southwest quarter of Section 11, Township 10 North, Range 5 East, of the 6th P. M., Lancaster County, Nebraska; that appellants unlawfully withheld possession since the 27th day of November, 1944, of a part thereof, described as: Commencing at the northeast corner of the southwest quarter, thence south along the east line thereof a distance of 24 feet, thence approximately west to a point in the west boundary line of said quarter section 71.8 feet south of the northwest corner thereof, thence north 71.8 feet to the northwest corner, thence east to the place of beginning; claimed damages in the sum of $1,000; and asked to recover possession and damages.
Appellants denied that appellee was the owner of the land last described and claimed that they were the owners thereof by deeds and adverse possession; alleged that a fence had been constructed along the south boundary of the land last described, and for more than 40 years had been recognized and treated by all the owners of the southwest quarter and the northwest quarter of said Section 11 as the true line between the two quarters of the west half of that section; that the owners had occupied and used the land relying upon the fence as the north line of the southwest quarter and as the south line of the northwest quarter of said section; that appellee was estopped from claiming otherwise; that the claim of appellee constituted a cloud on the title of appellants to the disputed strip; and ask that the title thereto be quieted in appellants.
Appellee denied the claims of appellants and asserted that while Carl Ninneman, under whom appellants claim, was the owner of the northwest quarter of Section 11, he disclaimed ownership of any land in the southwest quarter thereof, and a survey was made establishing the true line with his consent; that while the west half of the section was owned by one person, appellee purchased all of the southwest quarter and received a conveyance thereof from the owner; that thereafter the same person as owner sold and conveyed the northwest quarter of the section to appellants, at which time they had knowledge of all of the facts, and knew that appellee had acquired title to all of the southwest quarter; that later in an attempt to defraud appellee, the appellants secured a pretended deed to the land in dispute from Carl Ninneman and his wife, and caused it to be recorded; that this constituted a cloud on the title of appellee, and he asks to have his title to the disputed strip quieted and confirmed.
This case was by agreement of the parties transferred to the equity docket, trial was had to the court without a jury, and the court found that Bernice C. Butler and his wife were the owners of the west half of said Section 11 and conveyed all of the southwest quarter to George Foltz and John Jennes, and thereafter John Jennes conveyed all of his interest therein to appellee, who was at the time of commencement of this action the owner of the whole of the southwest quarter, and therefore the owner of the disputed strip; that at a later date Bernice C. Butler and his wife conveyed only the northwest quarter of the section to appellants; that appellee was entitled to have his title quieted, to a judgment of ejectment, and to recover nominal damages. A judgment was entered in accordance with the findings. The appeal is from that judgment.
Ejectment is an action at law and triable to a jury, unless the right is waived, notwithstanding any equitable matters presented in the case. S. 25-1104, R.S. 1943; 31 Am.Jur., Jury, s. 18, p. 568; 18 Am.Jur., Ejectment, s. 116, p. 93; Peterson v. Sucro, 4 Cir., 93 F.2d 878, 114 A.L.R. 890; Atkinson v. J. R. Crowe Coal & Mining Co., 80 Kan. 161, 102 P. 50, 106 P. 1052, 39 L.R.A.,N.S., 31, 18 Ann.Cas. 242; Jacobs v. Goodrich, 90 Neb. 478, 134 N.W. 171. The effect of the stipulation by the parties for a transfer of the case to the equity docket was consent to a trial of the case to the court without a jury. The findings of a court in a law action have the effect of a verdict of a jury and will not be interfered with unless they are clearly wrong. The weight of evidence or credibility of witnesses is not a concern of this court in the review of such a case except to determine that the findings and judgment are supported by evidence and are not contrary to law. Barnhart v. Henderson, 147 Neb. 689, 24 N.W.2d 854; State v. Neimer, 147 Neb. 284, 23 N.W.2d 81.
The appellee has shown a complete chain of title to all of the southwest quarter of Section 11, Township 10 North, Range 5 East, of the 6th P. M., Lancaster County. There is no claim that there is any defect or failure in the continuity of his paper title as disclosed by the public records of the county, commencing with the patent from the United States and continuing to the deed from Bernice C. Butler and Elcie Butler to him and John Jennes, and the deed from him to appellee. The title thereto which he claims is further evidenced by proceedings in the district court for Lancaster County to quiet the title, and a decree on June 17, 1929, quieting title thereto, against the claims of all persons, in Luther C. Smith, the immediate grantor of Bernice C. Butler and Elcie Butler. The record title of the appellee to the southwest quarter of this land is definitely established.
There is evidence that the quarter section lines of Section 11 had been surveyed in April of 1936, at the request of Bernice C Butler, and May 7, 1947, on the order of the appellant, Floyd Brakhage, and on June 7, 1947, a further survey was made which determined the north line of the southwest quarter of Section 11. The northwest corner and the northeast corner of the southwest quarter and the center of the section were found. A straight line was run between the northeast corner and the northwest corner of the southwest quarter, and this established the north line of the southwest quarter of this section. These surveys in reference to location of the north line of the southwest quarter and the fence on the south of the disputed strip are shown on a plat which accurately depicts the measurements from the north line of the southwest quarter to the fence line. The distance at the east line is 24 feet, and the distance 33 feet east of the west line is 71.8 feet. The...
To continue reading
Request your trial