Omaha & Florence Land & Trust Co. v. Parker

• Citation: 51 N.W. 139,33 Neb. 775
• Court: Nebraska Supreme Court
• Decision Date: 20 January 1892
• Parties: OMAHA & FLORENCE LAND & TRUST CO. v. PARKER.

33 Neb. 775

51 N.W. 139

OMAHA & FLORENCE LAND & TRUST CO.

v.PARKER.

Supreme Court of Nebraska.

Jan. 20, 1892.

Syllabus by the Court.

1. To entitle a party to claim by adverse possession he must have made an actual entry upon the lands and occupied the same as owner. This occupancy, however, may be continued by his agents and servants.

2. The possession must be actual, notorious, continuous, and exclusive, and may be by fencing and pasturing the land, cultivation, etc., and the payment of taxes.

3. To prevent the running of the statute of limitations against a party who has removed from the state the absence must be such as will prevent the bringing of an action against him during such absence. If there is no suspension of the right to bring and maintain a suit, the running of the statute will not be interrupted.

4. An action to recover the possession of land may be brought against those in possession thereof, although some of the parties may be absent from the state.

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

Ejectment by the Omaha & Florence Land & Trust Company against James M. Parker. Judgment for defendant. Plaintiff brings error. Affirmed.Congdon & Hunt, for plaintiff in error.

Lake & Hamilton, for defendant in error.

MAXWELL, C. J.

This action was brought in the district court of Douglas county by the plaintiff against the defendant to recover the possession of “outlots” 226 and 227 in the city of Florence. The answer contained-- First, “a general denial;” second, “a plea of title in the defendant, and the statute of limitations.” To this answer a reply was filed, setting forth, among other things: “(1) A denial that the statute had barred the action. (2) Further replying, plaintiff alleges that said defendant is now, and for fifteen years last past has been, a non-resident of Nebraska, and has visited this state at intervals, remaining here but a few days at a time, the aggregate of which time, during said period, would not exceed ninety days. (3) That the lots described in the answer lie within a general inclosure, including eighty acres and upwards, composed of numerous and similar lots, some of which defendant owns in fee, others he holds as co-tenant of an undivided moiety, and others still that he neither holds nor claims to hold adversely. (4) That said lots lie within the corporate limits of the city of Florence, and, as designated on the recorded plat thereof, are entirely surrounded by streets dedicated to the public, and that the fence comprising the general inclosure, as above stated, is not on the line of said lots, nowhere touches any of them, and that none of said lots are inclosed or surrounded by a fence. (5) That neither said defendant nor any one else has been in the actual possession of said premises at any time during the period mentioned in said answer. The testimony shows that defendant lived in the city of Florence, and at his home just outside of Florence, which is known as the ‘Parker Homestead,’ and of which this property forms a part, continuously from the year 1856 down to 1878; that since the latter date he has resided at Davenport, Iowa, but has made very frequent visits to his old homestead, near Florence, at intervals of from two to four months, remaining there each visit from a few days to as...