Schock v. City of Falls City

• Decision Date: 24 March 1891
• Citation: 48 N.W. 468,31 Neb. 599
• Parties: SCHOCK v. CITY OF FALLS CITY.
• Court: Nebraska Supreme Court

31 Neb. 599

48 N.W. 468

SCHOCK

v.CITY OF FALLS CITY.

Supreme Court of Nebraska.

March 24, 1891.

Syllabus by the Court.

A party who has been in the open, notorious, exclusive, adverse possession of a portion of a town-site for a period of time sufficient to bar an action against him to recover possession thereof,thereby acquires an absolute title to said land, and may protect his possession by injunction against unlawful acts of the city authorities in attempting to open streets through his land.

Appeal from district court, Richardson county; APPELGET, Judge.

J D. Gilman and E. W. Thomas, for appellant.

Frank Martin and C. Gillespie, for appellee.

MAXWELL, J.

A demurrer was sustained to the petition in the court below, and the action dismissed. The petition is as follows: “That on the 17th day of February, A. D. 1870, one A. J. Weaver was the owner of the N. W. 1/4 of section 14, in town 1, range 16, Richardson Co., Neb., and said A. J. Weaver and Martha Weaver, as his wife, caused said above-described tract of land to be all surveyed, platted, and laid out into lots, blocks, streets, and alleys; and caused a map or plat of said survey, showing said streets, alleys, lots, and blocks to be made, signed, acknowledged, and filed for record in the county clerk's office of said county, and recorded in the records of said county, showing said land so platted and laid out as Weaver's addition to the city of Falls City, Neb. At such time nearly all of said land was cultivated field, and used and occupied only as such. That upon said map was shown a strip of land marked as ‘Cameron Street,’ commencing at a point on the north line of said land, and about 508 feet west of the N. E. corner of N. W. 1/4 of section 14, and running thence south, to the south line of said quarter section. That said Cameron street was never opened or worked or prepared for a public street, or used, traveled, or accepted as such, or used for public travel, but passed along a portion of said cultivated field where there were no occupants or residents, and no one to travel or pass over the same, and in a secluded, out of the way, and unoccupied locality. That a very short time after the filing of the plat--plaintiff cannot give exact date,--the owner of all of what is shown on said plat as blocks 7 and 8, and lots 11, 12, 13, and 14, in block number 9, took actual adverse possession of, fenced, inclosed, and cultivated, commencing at a point 50 feet west of N. E. corner of said block 9, and on the north line of said block; running thence east, on and along the south side of 6th street, to the east line of said quarter section; thence south, on and along the east line of said quarter section, to the south line of 5th street, to a point 50 feet west of the S. E. corner of block 9; and thence north, on and along the west line of lots 14 and 11, in said block 9, to the place of beginning; and the same was all fenced together in one inclosure, including therein that part called ‘Cameron Street,’ between blocks 8 and 9, and was so actually held, occupied, and used by said owner, who was one of the grantors of plaintiff in direct line, and said land was so actually adversely held, occupied, and in the continuous, undisputed, quiet possession of grantors of plaintiff, up to the year 1878. The plaintiff, in October, 1878, finding said grantors in actual, adverse, quiet, undisputed, peaceable, and continuous possession of all the lands in said inclosure, purchased the same, and received from the grantors of plaintiff undisputed, actual, and adverse possession of all the lands in said inclosure, including said Cameron street, at that point, and from said last date, to-wit, October, 1878, at all times plaintiff has claimed and held actual, adverse, undisputed, continuous, and quiet possession of all said land in said inclosure, including said Cameron street, at that point, and now has said possession, and has held the same personally for more than 11 years before the filing of this petition; and plaintiff and his grantors have so held, used, and occupied, and been in said continuous adverse possession of same, for more than 15 years last past before the commencement of this action, and said inclosure had during said...