LeWis v. Baker

• Citation: 39 Neb. 636,58 N.W. 126
• Parties: LEWIS ET AL. v. BAKER.
• Decision Date: 06 March 1894
• Court: Nebraska Supreme Court

39 Neb. 636

58 N.W. 126

LEWIS ET AL.

v.BAKER.

Supreme Court of Nebraska.

March 6, 1894.

Syllabus by the Court.

When a person has been in the actual, visible, exclusive, and uninterrupted possession of a portion of a street in a city, under a claim of right, for 10 years, the title thereto vests absolutely in such occupant. Meyer v. City of Lincoln, 50 N. W. 763, 33 Neb. 566, followed.

Error to district court, Boone county; Harrison, Judge.

Action by Carrie R. Baker against George P. Lewis and the village of Albion for an injunction. There was judgment for plaintiff, and defendants bring error. Affirmed.F. S. Howell, for plaintiffs in error.

J. A. Price, for defendant in error.

RAGAN, C.

This is an injunction proceeding brought to the district court of Boone county by Carrie R. Baker against the village of Albion and one George P. Lewis, the overseer of streets of said village. The substantial allegations of the petition are that in the year 1879 one Mansfield owned lots 14 and 15 in block 2 of Mansfield's addition to the village of Albion, and on the 1st day of March of said year he conveyed said lots to one Diffenderfer, who took possession of said lots, and inclosed them, together with a strip of ground 9 feet and 5 inches in width on the south side thereof, by erecting around said lots and said ground a post and board fence; that on the 1st day of November, 1880, Diffenderfer conveyed said premises to one Letson; that on said last date said Letson conveyed said real estate to one Matilda Diffenderfer, who took possession of the same as inclosed; that on the 2d day of July, 1887, said Matilda Diffenderfer and husband conveyed said premises to the plaintiff, and that she, in the year 1887, removed the fence which Diffenderfer had built around said lots and strip of ground, and on the same day erected in its place, and on the same line, a new and costly fence, of posts and boards, which fence she caused to be painted, as well to make it ornamental as to preserve it, and that said fence remained as built at the time of the institution of this suit; that the plaintiff and those under whom she derived title had been in the open, notorious, exclusive, continuous, adverse possession, as owners of said premises, and every part thereof, as inclosed by said fence, for more than 10 years immediately before the commencement of this suit; that plaintiff's dwelling house and barn were on said lots so inclosed; that the said strip of ground of 9 feet and 5 inches in width, adjoining said lots on the south, and inclosed with them, had for more than 10 years formed a part of the lawn of the plaintiff's dwelling house; that she had spent much time, labor, and money in having said lawn improved and...