Hoffine v. Ewings

• Decision Date: 08 November 1900
• Docket Number: 11,433
• Parties: SOLOMON HOFFINE v. ANDREW J. EWINGS
• Court: Nebraska Supreme Court

84 N.W. 93

60 Neb. 729

SOLOMON HOFFINE v. ANDREW J. EWINGS

No. 11,433

Supreme Court of Nebraska

November 8, 1900

ERROR to the district court for Otoe county. Tried below before FAWCETT, J. Affirmed.

AFFIRMED.

John C Watson, John V. Morgan and Frank Irvine, for plaintiff in error.

Sloan & Moran, contra.

OPINION

HOLCOMB, J.

As presented to us, a proper disposition of this action hinges upon the correctness of certain instructions given to the jury and excepted to, and the ruling of the trial court on a motion for a new trial on the ground of newly-discovered evidence. The action is one of ejectment. The land in controversy is known as accretions caused by the recession of the channel of the Missouri river, on the borders of which the land lies. The plaintiff claims as the legal holder and owner of the title to the land to which the land in controversy is an alleged accretion, as aforesaid. The defendant claims by virtue of adverse possession. The trial to the court and a jury resulted in a verdict for the plaintiff, upon which judgment was rendered in his favor. The defendant prosecutes error.

Two instructions are complained of, being Nos. 4 and 5. With the instructions to which exceptions are taken, we give also the first instruction, believing it will assist in a more intelligent understanding and discussion of the other two.

"Inst. No. 1. That under the pleadings, the law and the evidence in this case the only question for your consideration is the question of adverse possession of the property in controversy set up by the defendant Solomon Hoffine in his answer herein, wherein he alleges that he has been in the actual, open, notorious, and exclusive possession of the land in controversy, claiming the same adversely to the plaintiff and all the world for more than ten years next before the commencement of this action; and the burden is upon the defendant to establish such defense by a preponderance of the evidence.

"Inst No. 4. You are instructed that adverse possession sufficient to defeat a legal title must be hostile in its inception and continue uninterruptedly for ten years. It must also be open notorious, adverse and exclusive and must be held during all of such time under a claim of ownership by the occupant, and all of these facts must be proved by a preponderance of the evidence.

"Inst. No. 5. If you believe from the evidence that the defendant, Solomon Hoffine, not less than ten years prior to the commencement of this suit, entered into possession of the lands in controversy and cultivated said lands or fenced the same, or erected improvements of any kind thereon or did other acts of such a character as to clearly show that he was occupying said lands and claiming the same as his own, and during all of said ten years continued to so occupy said lands, claiming during all of said time to be the owner of the same, and never during any of said period of ten years abandoned said land, but during all of said time continued openly, notoriously, adversely and exclusively to occupy and claim the same as his land, then you are instructed that said acts on the part of said defendant Hoffine would constitute adverse possession within the meaning of the law and would entitle the defendant to a verdict at your hands. But if the defendant Hoffine has failed to establish any of said acts by a preponderance of the evidence your verdict should be for the plaintiff."

It is urged that the fourth instruction is erroneous, because of the use of the word "hostile" in the manner in which it appears therein. It may be stated in the outset that an examination of the authorities in this state discloses that the word is infrequently used in expressing the character or nature of the possession of real estate which may in time ripen into a perfect title. At the same time it is to be borne in mind that it is not every possession, however long and continuous, which will give to an occupant of real estate a good title thereto as against the holder of the legal title. The authorities are uniform, and grounded on fundamental principles, to the effect that such possession must be in opposition and adverse to the constructive possession of the holder of the legal title. It must be under a claim of ownership which is inimical to the possession of the legal proprietor and all others. In Horbach v. Miller, 4 Neb. 31, 48, which may be regarded as the parent case on the subject in this state, an instruction "that if they [the jury] believed from the evidence that the plaintiff in error, for ten years next before the commencement of the action, was in the actual, continued, and notorious possession of the land in controversy, claiming the same as his own against all persons, they must find for the plaintiff in error," was approved as a correct statement of the law. "The possession must be inconsistent with the title of the true owner, and not subject to the rights of other parties." Gatling v. Lane, 17 Neb. 77, 79, 22 N.W. 227. "Such possession, when adverse, is sufficient if actual, open, notorious, and exclusive to give the party in possession title to the property." Crawford v. Galloway, 29 Neb. 261, 267, 45 N.W. 628. "* * * it is necessary that he should actually hold the land as his own during that period, in opposition to the constructive possession of the legal proprietor." Second paragraph syllabus, Smith v. Hitchcock, 38 Neb. 104, 56 N.W. 791. In the opinion in the same case, on page 109, says the author: "To constitute her possession or occupancy adverse, she must have actually held and occupied the property as her own, and in opposition and hostility to the concurrent and constructive possession of the owner of the legal title. There is no evidence in the record that establishes, or tends to establish, * * * that she ever held after her entry in hostility to the defendant in error." Says LAKE, C. J. in Roggencamp v. Converse, 15 Neb. 105, 108, 17 N.W. 361: "They claimed on the trial, and produced an abundance of evidence to show that the plaintiff's possession was simply as lessee under the title conveyed by the deed, and not in hostility to it." From the excerpts above given, the views of this court as to the character and requisites of the possession required in order to obtain title are readily discernible.

Counsel suggests that the words "hostile" and "hostility," although proper when employed between those versed in law and skilled in technical terms, are objectionable when used to jurymen, as they are apt to take them to signify ill-will, enmity, antagonism and the like. It is true, words sometimes convey different meanings to different minds, and have a technical as well as a common meaning. We do not, however, think the distinction contended for can be recognized. The test is whether, by a fair interpretation of the words used, in connection with other instructions, the jury could have been misled into an erroneous understanding of the law of the case as presented to them by the court. Possession of real estate for a period long enough to ripen into a good title, among other essential elements, according to the views above expressed, must be characterized by opposition to, and inconsistency with, the constructive possession of the legal proprietor, as well as all others asserting or claiming title to such property. This essential element is, as we have seen, at times expressed as "hostile" or "in hostility." Whether this expression conveys the meaning intended as clearly and accurately as some other term might, it is unnecessary here to determine. The decisive question is whether its use in the instruction excepted to is prejudicial error. For its disapproval chief reliance is placed on the expression by this court through MAXWELL, C. J. regarding the use of the word in the same connection in the case of Ballard v. Hansen, 33 Neb. 861, 864, 51 N.W. 295. In the instructions given the jury in that case the words "hostile" and "hostility" were used in defining the character of the possession required, e g. "Adverse possession, as relied upon by the plaintiffs in this action, is the open, actual, exclusive, notorious, and hostile occupancy of land, and claim of right, with the intention to hold it against the true owner and all other parties," etc. In reviewing the proceedings of the trial court in the case mentioned this court held, as announced in the third paragraph of the syllabus, as follows: "The word 'hostile' when applied to the possession of an occupant of real estate holding adversely, is not to be construed as showing ill-will, or that he is an enemy of the person holding the legal title, but means an occupant who holds, and is in possession, as owner, and therefore against all other claimants of the land." In the opinion of the court regarding the point decided in the syllabus quoted the learned author says, at page 865: "The word 'hostile,' which Webster defines as 'belonging to an enemy; appropriate to an enemy; showing ill-will and malevolence, or a desire to thwart and injure; occupied by an enemy or a hostile people; inimical; unfriendly; as, a hostile force; hostile intentions; a hostile country; hostile to a sudden change' (Ed. of 1881, 640), does not correctly state the character of the occupancy necessary to create adverse possession. There need be no ill-will, malevolence, or desire to injure any one, and the element of hostility in that sense does not necessarily enter into the case. What was meant, no doubt, was that the possession of the plaintiff below must be adverse or against the party holding the legal title." Further on the writer says: "In most instances it will be found that the adverse occupant has entered under a claim of right, and where such occupation has been adverse, open,...