Kuh v. Flynn
| Decision Date | 22 June 1922 |
| Docket Number | 22077 |
| Citation | 189 N.W. 280,108 Neb. 798 |
| Parties | ROSA KUH, APPELLANT, v. DENNIS FLYNN, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dakota county: GUY T. GRAVES JUDGE. Affirmed.
AFFIRMED.
S. T Frum, Sears, Snyder & Glysteen and Vail E. Purdy, for appellant.
W. V Steuteville, contra.
Heard before MORRISSEY, C. J., LETTON, ALDRICH and FLANSBURG, JJ.
Plaintiff brought this action in ejectment to recover possession of a ten-acre tract of land in Dakota county. Plaintiff alleges that at all times since July 21, 1893, she has been the owner thereof and entitled to its possession. The answer admits that defendant is in possession of the premises, denies plaintiff's ownership and right of possession and, by way of cross-petition, adds a plea of adverse possession and the statute of limitations, and pleads specially that more than 15 years before the bringing of plaintiff's action defendant entered into possession of the land; that it was then covered with underbrush and was in a wild, uncultivated state and unfenced; that defendant grubbed out the underbrush, fenced the land and brought it under cultivation. There is a prayer that plaintiff's petition be dismissed and that title be quieted in defendant. Plaintiff filed a reply denying each of the affirmative allegations of the cross-petition. A jury was waived and the cause tried to the court. The court dismissed plaintiff's petition, made a general finding in favor of defendant on his cross-petition, and entered a decree quieting title in defendant. Plaintiff appeals.
Defendant, to maintain the issues raised by his cross-petition, proved that in 1901 or 1902 he entered into possession of the land; it was then wild and unoccupied and grown up to brush. Defendant was and is lessee of a tract of land adjoining the land in suit, and he has in a degree used the land on which he held the lease and the land in suit for the same general purposes and has kept it inclosed with a fence. In 1903 or 1904 he cleared off two or three acres and reduced it to cultivation. From year to year thereafter he continued to clear off the brush, cultivated the land so cleared, and used that portion of the land not actually in cultivation as a pasture.
Defendant, continued his use and occupation of the premises without interruption until 1920, when plaintiff demanded possession. Thus far there is no dispute in the record. Defendant earnestly contends that during this long period of time he treated the land as his own and claimed it as his own as against all the world. Plaintiff concedes that defendant was in physical possession of the premises, but she denies that he held the possession as owner.
In Cervena v. Thurston, 59 Neb. 343, 80 N.W. 1048, this court has said: "To acquire real property by adverse possession it is not essential that entry should have been made under claim of ownership, if the occupancy was with intent to claim against the true owner."
And in Knight v. Denman, 64 Neb. 814, 90 N.W. 863, in the body of the opinion it is said: "While the intention to claim the land need not exist at the time of the entry, the statute will not begin to run until the possession is adverse, and the acts and intention of the occupant are those of an owner."
It will thus be seen that this cause may not be determined alone upon the fact of occupancy, and that the intention of defendant in taking possession of the land and in occupying the same may be of controlling importance. Defendant testified that from his first entry upon the land it was his intention to claim ownership and that through his many years of occupancy he regarded the land as his own. And his neighbors testified as to his assertion of title and claim of ownership. The rule is well settled that color of title is not necessary in order to acquire title by adverse possession. But...
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