Nelson v. Jenkins

• Decision Date: 03 October 1894
• Citation: 60 N.W. 311,42 Neb. 133
• Parties: NELSON v. JENKINS.
• Court: Nebraska Supreme Court

42 Neb. 133

60 N.W. 311

NELSON

v.JENKINS.

Supreme Court of Nebraska.

Oct. 3, 1894.

Syllabus by the Court.

1. In order to maintain trespass to land the plaintiff must be the owner, or in possession thereof, when the acts complained of were committed.

2. The certificate of the trial judge, attached to a bill of exceptions, reciting that “the bill contains all the evidence offered or adduced

by either party,” is unavailing, and will not control, where the bill on its face reveals the fact that important and material evidence has been omitted therefrom, and in such case the verdict will not be set aside as contrary to the evidence.

3. Error cannot be successfully assigned upon the admission of evidence when the trial court subsequently strikes the evidence from the record, and withdraws it from the jury's consideration.

4. Instructions to the jury must be considered together, and, if then they state the law applicable to the facts and the issues made by the pleadings, it is sufficient.

5. It is not indispensable to the establishing of a highway by adverse user that there be no deviation in the line of travel. If the travel has remained substantially unchanged, it is sufficient, even though at times, to avoid encroachments or obstructions upon the road, there may have been a slight deviation from the common way.

Error to district court, Dixon county; Norris, Judge.

Action by P. A. Nelson against W. Jenkins to recover damages for trespass on land by cutting down a fence standing thereon. There was a judgment entered on the verdict of a jury in favor of defendant, and plaintiff brings error. Affirmed.

Jay & Beck, for plaintiff in error.

Barnes & Eames, for defendant in error.

NORVAL, C. J.

This suit was brought in the district court by P. A. Nelson to recover damages for trespass upon the S. 1/2 of the N. E. 1/4 of section 9, in township 28, range 8 E., in Dixon county, by reason of the defendant cutting down a fence erected and standing upon said real estate. The petition contains the usual averments in an action in trespass. The defendant filed an answer, which, after admitting the cutting down of the fence in controversy, alleges that the same was erected over and across a public highway, and denies the other averments of the petition. The plaintiff, for reply, denies each allegation in the answer contained. From a verdict and judgment in favor of the defendant the plaintiff prosecutes a petition in error to this court.

The first assignment of error relates to the sufficiency of the evidence to sustain the verdict and judgment. The defendant admits that he cut down and removed the fence in dispute, but contends that the place where the same was standing was a part of the public road or highway, and therefore he committed no trespass. The principal question argued in the briefs is whether a highway was established by adverse user by the public for the period of 10 years, but, with the view which we entertain of another feature of the case, it will not be necessary to consider the evidence relating to the establishment of the road in controversy, or to decide whether a highway was in fact established by the proofs. Though it be conceded that there was no legal road at the point where the alleged trespass was committed, still the verdict was not contrary to the evidence. In order to maintain trespass to land the plaintiff must be the owner, or in possession thereof, when the acts complained of were committed. This question has more than once been so decided by this court. Yorgenson v. Yorgenson, 6 Neb. 383; Railway Co. v. Shepherd (Neb.) 58 N. W. 189; Hanlon v. Railway Co., Id. 590. The petition in this case fails to allege that plaintiff was in possession when the alleged trespass was committed, but avers that he was at that time the owner of the land. This allegation of ownership was put in issue by the defendant's answer, and it therefore devolved upon the plaintiff to establish by competent evidence that he had title to the real estate upon which the fence was situated. It appears from an inspection of the bill of exceptions that plaintiff upon the trial introduced in evidence a deed to the premises, and it is also recited that the original of such deed is attached to the bill of exceptions and marked “Exhibit A.” There is no such exhibit attached to, nor is the original deed, or a copy thereof, made a part of, the bill of exceptions in the case. The evidence fails to disclose the name either of the grantor or grantee described in the deed referred to, or that the conveyance was executed prior to the time the alleged trespass was committed. While the judge's certificate attached to the bill of exceptions contains the statement that “the bill contains all the evidence offered or adduced by either party,” such recital is unavailing, and will not control, inasmuch as the bill on its face reveals the fact that important evidence, the deed, is omitted. Railway Co. v. Hays, 15 Neb. 224...