Pohlman v. Lohmeyer

• Decision Date: 20 June 1900
• Citation: 60 Neb. 364,83 N.W. 201
• Parties: POHLMAN ET AL. v. LOHMEYER.
• Court: Nebraska Supreme Court

60 Neb. 364

83 N.W. 201

POHLMAN ET AL.

v.LOHMEYER.

Supreme Court of Nebraska.

June 20, 1900.

Syllabus by the Court.

1. A finding based upon conflicting evidence will not be disturbed on review.

2. The destruction of a fence and threatened repetition thereof by a trespasser as often as the fence should be replaced entitles the owner to relief by injunction against the invader, even though the latter may not be insolvent.

3. A definite description of lands in a deed designating the initial point and courses and distances, followed by a statement of the number of acres conveyed, passes the quantity of land embraced in the specific boundaries, though greater or less than the number of acres stated.

4. In a suit between others than original parties, the description in a deed, if unambiguous, governs, and the intention of the parties to the conveyance cannot take the place of calls.

5. Possession cannot be tacked to make out title by prescription, where the adverse occupant did not come in under another, and the deed under which the last occupant claims title does not include the land in dispute, or show any privity between him and his grantor in regard thereto.

Error to district court, Gage county; Stull and Letton, Judges.

Suit by the Evangelical Lutheran Trinity Church against Henry Pohlman and Henry Holsing. Judgment for plaintiff, and defendants bring error. Affirmed.Hazlett & Jack, for plaintiffs in error.

Griggs, Rinaker & Bibb, for defendant in error.

NORVAL, C. J.

This suit was instituted by the Evangelical Lutheran Trinity Church of Clatonia precinct, Gage county, to enjoin Henry Pohlman and Henry Holsing from entering or trespassing upon certain real estate alleged to belong to plaintiff, and from destroying the fence around said premises. A temporary injunction was issued, which was made perpetual upon the final hearing of the cause. The defendants prosecute error.

Plaintiff acquired title to the tract by deed of general warranty from the prior owner. It thereafter erected a church building and parsonage on the premises at the cost of several hundred dollars, inclosed the same with a fence, and used and occupied the premises for religious purposes. The defendants assert that the grantor in the deed to plaintiff intended to convey only five acres of land, while a larger tract was actually described in the conveyance. They also claim title to the portion of the premises in excess of five acres by reason of adverse occupancy for more than 10 years. The testimony in many respects was conflicting, in which case the rule is that a finding based thereon will not be disturbed on review.

It is argued that injunction will not lie, as plaintiff had a complete remedy at law to recover damages. It was shown that defendants tore down and destroyed the fence, and threatened to repeat it as often as plaintiff should restore the same. This threatened continued trespass was sufficient to give a court of equity cognizance of the cause, though the defendants may not be insolvent. Shaffer v. Stull, 32 Neb. 94, 48 N. W. 882. The church claims under a deed from one Paul Bartos, a former owner of the property, in which conveyance the description was by metes and bounds as follows: “Beginning at the southeast corner of the southeast quarter of section thirty (30), town six (6) N., range five (5) east, in Gage county; thence north four hundred and twenty-five (425) feet; thence west one thousand and fifty (1,050) feet; thence south four hundred and twenty-five (425) feet to the south line of said section; thence along said line one thousand and fifty (1,050) feet to the place of beginning,--containing five (5) acres, more or less.” Subsequently Bartos conveyed to Frederic A. Pohlman said southeast quarter of section 30, with the following reservation contained in the deed: “Except five acres, more or less, of said quarter section, bounded and described as follows: Beginning at the southeast corner of said section thirty (30); thence north four hundred and twenty-five (425) feet; thence west one thousand and fifty (1,050) feet; thence south four hundred and twenty-five (425) feet, to the south line of said section; thence east along said line one thousand and fifty (1,050) feet, to the place of beginning,--which last described premises have been conveyed to John F. Hobelman, August Vonderfecht, and William Schlake, trustees of the Evangelical Lutheran Church.” Afterwards the grantee in the last deed and his wife contracted to convey to Henry Lohmeyer the said southeast quarter of section 30, “except five acres deeded to trustees of...