Omaha & Florence Land & Trust Co. v. Hansen

• Decision Date: 01 July 1891
• Citation: 49 N.W. 456,32 Neb. 449
• Parties: OMAHA & FLORENCE LAND & TRUST CO. v. OLOF HANSEN
• Court: Nebraska Supreme Court

49 N.W. 456

32 Neb. 449

OMAHA & FLORENCE LAND & TRUST CO. v. OLOF HANSEN

Supreme Court of Nebraska

July 1, 1891

ERROR to the district court for Douglas county. Tried below before DOANE, J.

AFFIRMED.

Congdon & Hunt, for plaintiff in error:

The adverse nature of the possession as well as the fact thereof must be shown by a clear and positive proof. (Colvin v R. V. Land Ass'n, 23 Neb. 80.) Possession by one other than the owner is always presumed to be permissive and not adverse. (Angell, Lim., sec. 384.) The occupant must hold the property exclusively and adversely to the true owner and to the world. (Walsh v. Hill, 41 Cal. 571; Putnam Free Sch. v. Fisher, 34 Me. 172.) Continuity is broken by the assertion of a different claim by the occupant than that under which he formerly held. (Pepper v. O'Dowd, 39 Wis. 548; Wood, Lim., sec. 270; Barnes v. Vickers, 59 Tenn. 370; Crispen v Hannavan, 50 Mo. 549.)

Lake & Hamilton, contra:

Possession for more than ten years, although without color of title conveyed to defendant the fee. (Gatling v. Lane, 17 Neb. 83; Haywood v. Thomas, 17 Neb. 240.) The plaintiff must recover, if at all, on the strength of his own title. (Franklin v. Kelley, 2 Neb. 112; Butler v. Davis, 5 Neb. 525; O'Brien v. Gaslin, 24 Neb. 562.) As to how the intention to claim ownership, of which defendant testifies, must be manifested to the world to make his possession adverse: Horbach v. Miller, 4 Neb. 47; 1 Am. & Eng. Ency. Law, 264, n. 1. As to the tax deed: Griffith v. Smith, 27 Neb. 47.

OPINION

MAXWELL, J.

This is an action of ejectment brought by the plaintiff against the defendant to recover the possession of "Lots 2 and 4, block 77; lot 2, block 79; lots 5 and 7, block 82; lot 6, block 86; lot 8, block 87; lot 5, block 236; lots 1, 3, and 8, block 251; lots 1, 5, 6, 7, and 8, block 252, in the city of Florence, Douglas county.

The defendant, in his amended answer, pleads first a general denial, and second, that the cause of action did not accrue within ten years before the bringing of the action.

During the trial the plaintiff dismissed the action without prejudice as to lots 6 and 8 in block 231; lot 5 in block 234; lot 8 in block 238; lot 4 in block 81, and lot 7 in block 78.

The jury found in favor of the plaintiff for lots 5 and 7, block 82; lot 6 in block 86; lot 8 in block 87, and for the defendant for the remainder of the property.

The principal error relied upon in this court is in the giving of certain instructions as to the defendant, as follows:

"First--The jury are instructed that under the issues in this case the burden of proof rests upon the plaintiff, and before it can recover any of the lots in controversy from the defendant the plaintiff must show, to the satisfaction of the jury, and by a preponderance of evidence, a right to them, superior and better than that of the defendant. Unless the plaintiff has succeeded in doing this, the jury should return a verdict in favor of the defendant.

"Second--In his answer to the plaintiff's petition, the defendant Hansen has interposed as a defense the statute of limitations, by which he asserts, in effect, that the lots in controversy have been under his control and occupancy for the full period of ten years next before this suit for the possession was commenced. And if the jury shall find from the evidence that as to the lots in controversy, or any of them, Hansen had been in the undisturbed, actual, open, and exclusive occupation and control, either personally or by his servants, agents, or lessees, for ten years next before the commencement of this action (which was January 22, 1887), and under a claim of ownership, then in that case the defendant is entitled to a verdict in his favor, as to all of the lots so occupied and controlled by him.

"Third--No particular act or series of acts were necessary to be done on the land by Hansen, in order to make his possession actual and available to him in this case as a defense. Any visible or notorious acts which the jury may find from the evidence, clearly show an intention on his part to claim ownership, and possession will be sufficient to establish his claim of adverse possession. And such acts are equally available to him, whether they were done either personally or by his lessees or other privities or agents.

"Fourth--Adverse possession may be evidenced by such use of the lots in question by Hansen or his privities as would indicate to a passer-by, and to the owner if he went to them, that they were used and claimed by some one.

"Fifth--The jury are instructed that it is not necessary that one who takes possession of lands or lots and holds the same adversely to the owner, should have a deed or other written evidence of title, in order to cause the statute of limitations to run in his favor; but it is sufficient if he take actual, open possession, under a claim of ownership, and continue it for the full period of ten years. If he do so, his title and ownership are complete.

"Sixth--If as to any of the lots in controversy, the jury shall find that Hansen took actual possession, and either in person, or by another person or persons as his...