Smith v. Hitchcock

• Decision Date: 18 October 1893
• Citation: 38 Neb. 104,56 N.W. 791
• Parties: SMITH v. HITCHCOCK.
• Court: Nebraska Supreme Court

38 Neb. 104

56 N.W. 791

SMITH

v.HITCHCOCK.

Supreme Court of Nebraska.

Oct. 18, 1893.

Syllabus by the Court.

1. A plaintiff in ejectment, claiming title to the lands sued for by reason of 10 years' adverse possession thereof, to prevail, must prove a continuous possession of said property under a claim of ownership in himself, and that such possession was actual, visible, notorious, exclusive, and adverse to the owner of the legal title.

2. To constitute an adverse possession of land, such as, if it continued for 10 years, would establish title in the occupant, it is necessary that he should actually hold the land as his own during that period, in opposition to the constructive possession of the legal proprietor.

3. Where the owner of the legal title to real estate occupies the same concurrently with one who entered by his permission without color of title, such possession of the owner negatives any presumption that the other occupied adversely to him.

4. Where possession of real estate is the result of an entry upon the premises by permission of the legal owner, such possession will not become adverse until some act is committed by the occupant rendering it so, and notice thereof is brought home to the owner of the legal title.

5. In order to predicate error upon the sustaining by the trial court of an objection to a question propounded to a party's own witness, the party must make an offer to prove the fact sought to be elicited by the question. Masters v. Marsh, 27 N. W. Rep. 438, 19 Neb. 458, followed.

6. To entitle a party to a new trial on account of newly-discovered evidence, it is not enough that the evidence is material, and not cumulative. It must further appear that the applicant for the new trial could not, by the exercise of reasonable diligence, have discovered and produced such evidence at the trial. Fitzgerald v. Brandt, (Neb.) 54 N. W. Rep. 992, followed.

7. A new trial should not be granted on the grounds of newly-discovered evidence, when such testimony would not change the result of the first trial. Kaiser v. Decker, 45 N. W. Rep. 272, 29 Neb. 92, followed.

Commissioners' decision. Error to district court, Douglas county; George W. Doane, Judge.

Action in ejectment by Charity Smith against Gilbert M. Hitchcock. Defendant had judgment, and plaintiff brings error. Affirmed.

David Van Etten, for plaintiff in error.

Chas. E. Clapp, for defendant in error.

RAGAN, C.

This is a suit in ejectment brought on November 9, 1889, to the district court of Douglas county by Mrs. Charity Smith against Gilbert M. Hitchcock for a part of lot 1 in Capitol addition to the city of Omaha. The case was tried to a jury, who, under instructions of the court, rendered a verdict for Hitchcock, and Mrs. Smith brings the case here for review.

Mrs. Smith has no paper title of any kind for any part of the property. Her claim is based wholly on possession. The record shows that on and prior to 1869 this lot No. 1, being 668 feet in length, north and south, and 218 feet in width, east and west, was owned by Mrs. Annie M. Hitchcock. She died in 1877, and the lot, by her will, passed to her husband, the late Senator Hitchcock. He died in 1881, and the lot descended to his son, the defendant in error. About 1870, by permission of Mrs. Hitchcock and her husband, Mrs. Smith moved a small cottage she owned upon this lot 1, near the east line thereof, and lived in this cottage at that place until 1880. Mrs. Smith did laundry work from time to time during these years for the Hitchcock family and others. She also planted part of the ground near her cottage to a garden. During all these years, the Hitchcock family, consisting of Mrs. Hitchcock, her husband, and the defendant in error, and others, lived upon the lot,--had on it their barn, horses, cattle, and garden,--and exercised exclusive ownership and control of the whole lot. During all this time, it was all under one inclosure, built and maintained by the Hitchcocks; and that part occupied by Mrs. Smith's cottage was, in no other manner than by the cottage itself, separated or severed from the remainder of the lot. Mrs. Smith, during this period, by the permission and consent of Mrs. Hitchcock and her husband, and as a kind of a nonrent-paying tenant at will or sufferance, also occupied her cottage on the lot. She paid no taxes. She exercised no act of ownership over the lot, or any definite portion of it. Thus matters continued until 1880, when Mrs. Smith, by the permission of Senator Hitchcock, who then owned the title to the lot as devisee of his deceased wife, and who still continued to occupy the lot with his family, removed her cottage to a point nearer the west line of said lot, and some 250 feet southwest of its original location. This is the present location of the cottage. The usual occupation and control of the lot by the Hitchcocks continued as before this removal, and Mrs. Smith continued to live on, uninterrupted, in her cottage. The senator died in 1881, and the defendant in error became the owner of the lot, and has since continued to reside upon it, in the family homestead. In 1883, defendant in error erected three houses, on a portion of the lot now claimed by Mrs. Smith, which houses have since been occupied by tenants of the defendant in error. In 1886, Douglas street, 66 feet wide, was extended west across the entire lot, leaving the first location of Mrs. Smith's cottage north of said street. After the extension of Douglas street, the defendant in error built fences on both the north and south...