Lockey v. Horsky
| Decision Date | 02 February 1882 |
| Citation | 4 Mont. 457 |
| Parties | LOCKEY v. HORSKY. |
| Court | Montana Supreme Court |
The objection that the court below erred in sustaining a motion for a nonsuit, cannot be considered in this court on appeal, unless the evidence is before us, as the question cannot be determined without it.
Where a demurrer to the answer is filed and overruled, it is waived by the filing of a replication and going to trial.
For the purpose of constituting adverse possession by a person claiming under a written instrument, the land is deemed possessed when protected by a substantial inclosure; and no more than the land actually occupied is deemed to be held adversely.
From Third district, Lewis and Clarke county.
M. Bullard, for appellant.
Toole & Toole, for respondent.
This cause was tried by the court, a jury having been waived. It was an action to recover the possession of a certain piece or parcel of ground, situate in the town of Helena, and described as 10 feet front on Main street by 123 feet deep, off of the north side of lot No. 14, in block No.37, of the town-site of Helena, and for damages for withholding possession. Upon the trial of the cause the court found special findings of fact as follows, to-wit:
(1) That this cause was commenced in this court by the filing of the complaint and the issuing of a summons thereon on the twenty-ninth day of July, 1879.
(2) Thereafter, to-wit, on the twenty-ninth day of July, 1879, said summons was served upon the defendant personally by the sheriff of said Lewis and Clarke county, as appears by his return on file.
(3) That the predecessors in interest of the said defendant went into actual possession and occupancy of the property in controversy in the year 1866, were inhabitants of the town of Helena, and continued in such possession up to the time of the sale and conveyance of the same to the defendant.
(4) That the probate judge of Lewis and Clarke county, Montana territory, entered said town-site, as provided by law in such cases, on the seventh day of January, 1869, and there, on the ___ day of May, 1869, made to the predecessors in interest of said defendant a deed for lot 15, block 37, in said site, plat, and survey, under which the defendant, as grantee of such predecessors, claims the property in controversy, since which date the defendant and his predecessors in interest have been in the actual possession of the property in controversy, the same having been inclosed by a substantial fence in 1870, and prior to the issuance of the deed for lot 14 by the probate judge to the plaintiff, which fence has been maintained by the defendant and his predecessors in interest from that date until the date of the commencement of this action.
(5) That defendant since his purchase of the said property, and his predecessors in interest since the year 1866, and up to the bringing of this action, were in the actual possession of the property in controversy, and since 1870 have had the same inclosed by a substantial fence, and during all of said time have claimed title to the same exclusive of all other right.
(6) That on the fifth day of December, 1870, the...
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