Obernalte v. Edgar

• Decision Date: 26 November 1889
• Citation: 44 N.W. 82,28 Neb. 70
• Parties: OBERNALTE v. EDGAR.
• Court: Nebraska Supreme Court

28 Neb. 70

44 N.W. 82

OBERNALTE

v.EDGAR.

Supreme Court of Nebraska.

Nov. 26, 1889.

Syllabus by the Court.

1. It is in the discretion of the judge presiding at a trial to determine whether a question is objectionable as leading; and a judgment will not be reversed for error in that respect, except in a case where there is an abuse of discretion. See Walker v. Dunspaugh, 20 N. Y. 170.

2. If one by mistake inclose the land of another, and claim it as his own, to certain fixed monuments or boundaries, his actual and uninterrupted possession as owner for the statutory period will work a disseisin, and his title will be perfect. Levy v. Yerga, 25 Neb. 764, 41 N. W. Rep. 773.

Error from district court, Cass county; CHAPMAN, Judge.J. H. Haldeman, for plaintiff in error.

H. D. Travis, for defendant in error.

COBB, J.

This proceeding in ejectment is brought on error from the district court of Cass county. The plaintiff alleged, in the court below, that he has a legal estate in, and is entitled to, the immediate possession of a piece or strip of land off the south side of the south-east quarter of section 19, township 11, range 11, in said county, being about 73 links wide at the west end of said strip, and running from thence east, angling, to a point at the south-east corner-stone of said section, and containing about 1 1/2 acres; that the defendant unlawfully keeps him out of the possession thereof; and prays judgment of possession, etc. The amended answer of the defendant denies each and every allegation of the plaintiff. (2) That he has open, notorious, exclusive, continuous, and peaceable possession for more than 10 years next preceding the commencement of this suit, and is the owner in fee-simple of the land described. (3) That the highway running east and west between the lands of plaintiff and the S. E. 1/4 of section 19, town 11, range 11 east of the sixth P. M., in said county, and the lands of Jonathan Edgar, on the south, have been used by all parties owning and controlling said lands and the owners of adjoining lands, for the last 18 years immediately preceding the commencement of this suit, as the true line and boundary between the lands of plaintiff and defendant; and that the plaintiff is thereby estopped to claim the lands described, etc. There was a trial to a jury, with a verdict for the defendant. The plaintiff's motion for a new trial being overruled, judgment was entered on the verdict for defendant's costs, and the plaintiff's bill of exceptions was allowed and settled on the following assignments of error: (1) The court erred in permitting the defendant and Beach and Allen to testify, over objection of plaintiff, in relation to the boundary lines of sections 19 and 20, in township 11, range 11, in said county, and to the boundary and location of the strip in controversy, and the improvements supposed to be put thereon; said witnesses not having shown themselves competent to so testify. (2) In permitting leading questions to be put and answered by defendant and Beach and Allen, clearly suggesting the answers on material points. (3) In giving, on his own motion, instructions to the jury numbered 1, 2, 3, 4, and 5. (4) In giving instruction 7 asked by the defendant. (5) In refusing to give instructions 1, 2, 3, 4, 5, 6, 7, 8, and 9 asked by the plaintiff. (6) The verdict is not sustained by sufficient evidence, and is contrary to law and the evidence adduced. (7) In overruling the motion for a new trial.

The first error relied on, and argued in the brief of plaintiff in error, is that defendant, and other witnesses called by him, when on the stand in the court below, were permitted by the court, over the objection of the plaintiff, to answer leading questions put to them by defendant's counsel. As above stated, the defendant had pleaded in answer, among other matters of defense, “that he has had open, notorious, exclusive, continuous, and peaceable possession” of the land in controversy for more than ten years next preceding the commencement of the suit. The defendant, Jonathan Edgar, having testified that he was the defendant in said cause; that he lived on section 30 until quite recently, but then lived at Wabash; that he went onto that part of said section, and took it up as a homestead, in 1869; that he went onto it in 1870, and had occupied it ever since,--his examination was continued, as follows: “Question. What, if any, improvements have you made, and what have you done, on the strip of land in controversy in this case? (Over objection, he answered: ‘In the spring of 1870 I broke out my hedge-rows, and in the spring of 1871 I put out my trees.’) Q. State where you put them. Answer. Right along the north line of section 30. Q. What quarter of the section? Over objection.) A. The north-east part of that section. Q. How much land did you own in that part of the section? A. 40 acres. Q. You are sure that is on the land which Mr. Obernalte claims from you, are you? A. Yes, sir. Q. Have you stated all the improvements that you have made on that land now? A. That is all. Q. Have you ever recognized the plaintiff in this case as having any interest in this land, in any manner? (Objected to as leading, incompetent, and irrelevant. (Overruled, with exception.) A. No, sir. Q. When did he first claim an interest in this land? A. I think it was about two years ago. Q. In 1886? A. Yes, sir.” H. C. Beach, a witness on the part of the defendant, testified “that he resides on the north-west quarter of section 30, 11, 11. That he homesteaded the north half of said quarter, he thinks, in 1867, and has lived there continuously since 1868. That he has known Mr. Edgar, the defendant, ever since he has lived there.” His examination continued as follows: “Question. State, if you know, how long Mr. Edgar has resided there on the north-east quarter of section 30, 11, 11. (Objected to as incompetent and immaterial. Overruled, with exception.) Answer. I believe he came there in 1870,--about the year 1870, I think it was,--and he was living there until this fall,--probably two or three months ago,--when he moved to Wabash. Q. Do you know the land in controversy in this suit, described in the petition as a piece or strip of land off the south side of the southeast quarter of section 19, 11, 11 Cass county, Nebraska, as being about 73 links wide at the west end and running from thence east to a point at the south-east corner? A. Yes, sir. Q. State, if you know, what, if any, improvements Mr. Edgar made on that land. (Objected to as incompetent, immaterial, and the witness has not shown himself to be a surveyor. Overruled, with exception.) A. According to the surveys, I know he has some improvements there, in the way of trees, buildings, and other improvements,--general improvements. Q. According to the survey, you say, you know. State what you mean. (Objected to as incompetent, immaterial, and irrelevant. Overruled, with exception.) A. I mean the survey that I have always known. Q. By the Court. What was your knowledge derived from? A. My knowledge was from the stone that we had there,--from the corner-stone and from the road. (The plaintiff moves to strike the answer out. Overruled, and exception.) Q. Go on, and state further about that matter, according to the survey you knew. State what you mean. (Objected to as immaterial, incompetent, and irrelevant. Overruled, and exception taken.) A. I did. Q. State what you know about the boundary line of the north-east quarter of section 30 and the south-east quarter of section 19. (Objected to as above. Overruled, and exception taken.) A. In 1869, prior to that, Mr. Smith owned a portion of the land south of me, and we wanted to divide some timber, and consequently we wanted to get a surveyor to settle the dispute of the timber. I owned the north half, and he the south half, and we wanted to get a line surveyed through there, and settle this question to which the timber belonged on a certain line. Heclaimed further north, and I claimed further south. Q. What do you know about this road and this boundary line? A. We got him to survey out our land at that time, and he surveyed it out, and he run to this stone, that is, at the north-west corner of this 40, across the land that Mr. Edgar owns, and also the quarter corner between sections 19 and 30. He run there to this stone, and he said that that was a government stone at that time, and I recognized it as such ever since. It has a mark on it,--a government mark on it. (The defendant moved to strike out that part of the witness' testimony wherein he describes the government line and stone; the witness not having shown himself competent to testify to the fact. Overruled. Exception taken.) Q. A competent surveyor said it was? A. Yes, sir. I took A. B. Smith's word for it. * * * Q. In your testimony, you speak of improvements on the south-east quarter of section 19. Do you mean to include those improvements north of the road? A. Yes, sir. Q. Then this strip of land that is in controversy is south of the road? A. Yes, sir. Q. And you speak of that as being in section 30? (Objected to as leading. Overruled. Exception.) A. Yes, sir. Q. Now, about that road. Has that been treated by the parties there as a boundary line between the south-east of 19 and the north-east of 30, or do you know? A. Yes, sir. Q. Now, state what you know. (Objected to as leading, etc. Overruled. Exception.) A. I know that all parties that had anything to do with the land have recognized that corner as the corner in all farming.” B. F. Allen, a witness on the part of the defendant, stated that he resides on section 25, on the south-east quarter, 11, 10; that he is acquainted with Mr. Edgar, defendant; has known him, probably, for 30 years. Thinks that he homesteaded the north-east quarter of section 30, 11, 11, in the winter of 1869, and went onto it in the spring of 1870 to live; that he has been there ever since, until within a few months....