Jasperson v. Scharnikow

• Decision Date: 04 February 1907
• Docket Number: 1,332.
• Citation: 150 F. 571
• Parties: JASPERSON et al. v. SCHARNIKOW.
• Court: U.S. Court of Appeals — Ninth Circuit

150 F. 571

JASPERSON et al. v. SCHARNIKOW.

No. 1,332.

United States Court of Appeals, Ninth Circuit.

February 4, 1907

Jas. B Reavis, F. S. Thorp, and L. H. Wheeler, for plaintiffs in error.

H. D Moore and Ellis & Fletcher, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The defendants in error brought ejectment to recover the possession of a quarter section of land situate near the town of Ballard, in the state of Washington. Their claim of title was by seisin under a patent from the United States issued in 1872 and the payment of all taxes assessed since that time. The plaintiffs in error claimed right and title to said premises through their predecessor in interest, Uriah M Bryant, who, as they asserted, entered into the possession of said premises in the year 1888, under a claim of right to the ownership thereof and adverse to all others, and that such claim of right and possession was continuous, exclusive actual, and adverse for more than 10 years preceding the commencement of the action. The trial court at the conclusion of the evidence submitted to the jury the question of the amount of damages recoverable by the defendants in error, but instructed the jury to return a verdict in their favor for the recovery of the possession of the premises.

It is contended that this instruction was not justified by the evidence. There was testimony tending to prove that in the year 1888 Uriah M. Bryant, the predecessor in interest of the plaintiffs in error, entered into the possession of the premises, constructed thereon a log cabin and a log barn made certain other improvements, cleared a small portion of the land, built roads for hauling shingle bolts and wood to market, and during the time of his occupation, which extended from that date until his death in 1897, was actively engaged in cutting and hauling such timber products to market, using two teams for that purpose. There was testimony that he went into possession of the land for the reason that he found it vacant and unoccupied and intended to acquire it as a homestead. One O. H. Briggs testified that he went into possession of the premises with Bryant; that they had looked over the premises, found no landmarks, determined to squat upon it, and, if they proved up, to divide it; that thereafter they went to the courthouse and found the land had been patented to Higgins, after which the witness abandoned the premises, leaving the same in the possession of Bryant. There was testimony of another witness that some years later he knew that Bryant claimed the place against some man named Higgins. There was no other testimony as to the nature of Bryant's claim, except that the place was known as the 'Bryant Place,' and that Bryant, as owner, posted on the premises notices against trespassers. Siepmann, one of the plaintiffs in error, testified that in April, 1898, some four months after Bryant's death, he bought the premises from the widow and Bryant's father, Jacob S. Bryant, for the sum of $350, of which $15 was paid to the widow and $175 to the father, and that he still owes $160 thereof, and that on May 17, 1899, a quitclaim deed was obtained to said premises from Jacob S. Bryant and his wife. The record shows that the property was appraised in the year 1899 at $48,000, and that the annual taxes thereon at the time when the plaintiffs in error made their purchase exceeded the amount of the purchase price which they were to pay for the property; that during the whole of the time of such alleged adverse possession the defendants in error resided in the state of...