Murray v. Romine

• Decision Date: 04 April 1900
• Parties: MURRAY v. ROMINE.
• Court: Nebraska Supreme Court

60 Neb. 94

82 N.W. 318

MURRAY

v.ROMINE.

Supreme Court of Nebraska.

April 4, 1900.

Syllabus by the Court.

1. In ejectment, proof of adverse possession is admissible under a general denial.

2. A verdict based upon evidence sufficient to establish a holding of possession of property adversely, openly, notoriously, exclusively, and continuously for a period exceeding 10 years prior to the commencement of an action, under a claim of right, will not be disturbed, although the evidence introduced to establish such fact may not be inconsistent with a holding under a claim other than that of title.

3. Possession of one occupant may be tacked to that of another if one acquired possession from the other, and the possessory estates are connected and continuous.

4. Color of title is not essential to adverse possession.

5. The right of one person holding possession adversely may be transferred to another verbally.

6. Instructions examined, and held to have been properly given.

Error to district court, Douglas county; Dickinson, Judge.

Action by Thomas Murray against Rolandus Romine. Judgment for defendant, and plaintiff brings error. Affirmed.I. J. Dunn and T. J. Mahoney, for plaintiff in error.

Wright & Thomas, for defendant in error.

NORVAL, C. J.

This action is one of ejectment, commenced in the district court of Douglas county by Thomas Murray against Rolandus Romine to contest the title to certainlands situate in that county. The petition contained the averments usual in actions of that nature. The answer was a general denial of the allegations of the petition, and on the trial defendant was permitted to introduce evidence, over the objections of plaintiff, tending to prove adverse possession for a term exceeding 10 years. It appears from the evidence that more than 10 years prior to the commencement of the action one H. M. Gillispie entered upon the tract in controversy, which is adapted exclusively for grazing. For one or two years he herded cattle upon it, and afterwards fenced a portion thereof, and during the time of his occupancy pastured cattle on it in the grass season, cut hay from some portion, and excluded all others therefrom. Afterwards, for a valuable consideration, he transferred his possession to the defendant, also selling him the fence, who, ever since, has occupied the land as his own, inclosed it and other land with a fence, except on one side thereof, which abuts upon the Platte river, the latter acting as a bar to the ingress or egress of persons or stock. The agreement by which possession of Gillispie was transferred to defendant was oral. To complete the bar of the statute, it was necessary to tack the possession of Gillispie to that of defendant. There was a verdict and judgment for the latter, from which judgment plaintiff comes to this court on petition in error. Several errors are alleged, which will be noticed so far as it is considered necessary to a proper decision of the cause.

It is claimed that the court erred in permitting evidence of defendant tending to prove adverse possession without having pleaded the statute of limitations. Generally, the statute, to be available as a defense, must be pleaded; but an exception to this rule occurs in cases of ejectment, the reason for which is set forth in the case of Staley v. Housel, 35 Neb. 160, 52 N. W. 888, it being there held that any defense is available under a general denial in an action of ejectment. Under the rule as there stated it was not necessary that the statute be pleaded; hence no error occurred in the permitting evidence of adverse possession to be introduced under the general denial contained in the answer.

It is also claimed that the defense of adverse possession was not established on the trial. We do not deem it necessary to review the evidence, but it is sufficient to say that it discloses that...