Zweibel v. Myers

• Decision Date: 03 June 1903
• Docket Number: 12,882
• Citation: 95 N.W. 597,69 Neb. 294
• Parties: PHILIP H. ZWEIBEL v. FANNIE PIATT MYERS
• Court: Nebraska Supreme Court

95 N.W. 597

69 Neb. 294

PHILIP H. ZWEIBEL v. FANNIE PIATT MYERS

No. 12,882

Supreme Court of Nebraska

June 3, 1903

ERROR to the district court for Sarpy county: GUY R. C. READ DISTRICT JUDGE. Affirmed.

AFFIRMED.

G. M Mullins, Howard H. Baldrige and William A. De Bord, for plaintiff in error.

Isaac Congdon, contra.

OLDHAM C. AMES and HASTINGS, CC., concur.

OPINION

OLDHAM, C.

This was an action in ejectment to recover possession of a tract of land containing about 85 acres situated in Sarpy county, Nebraska. The petition was in the statutory form; the answer a general denial; there was judgment in the court below for plaintiff and defendant brings error to this court.

When the taking of testimony began, plaintiff's counsel stated that he did not care to insist on a judgment for damages for the unlawful holding of the premises, but would be satisfied with a judgment for possession. Defendant thereupon offered to admit, that the plaintiff held the record title to the premises, and claimed the right to open and close the case, saying that he would rely upon a title by adverse possession. The court, however, permitted the plaintiff to introduce her deeds and open and close the argument to the jury, and its action in this matter is the first alleged error called to our attention.

The right to open and close the argument in the trial of a cause, is properly determined by an inspection of the pleadings, and section 283 of the code says: "In the argument, the party required first to produce his evidence shall have the opening and conclusion." In the case at bar if no evidence had been introduced, under the pleadings defendant would have been entitled to a judgment; hence plaintiff, in order to recover, would have been compelled to have shown not only that she held the record title to the premises, but also that defendant was wrongfully in possession of the same. Each of these allegations were denied by defendant's answer. It is therefore apparent that the action of the trial court was fully warranted.

Two other objections are called to our attention in defendant's brief; one is as to the action of the trial court in giving paragraph 8 of instructions, on its own motion; and the other, that the judgment is not sustained by sufficient evidence. As a review of the testimony contained in the bill of exceptions is necessary to an intelligent discussion of each of these objections, we will consider them together. The material facts in the record are, that the land in controversy was patented by the United States, in 1864; that it is bounded on the south by the Platte river, is rough in its character, covered to some extent with scrubby timber, and adapted only to pasturage or stone quarrying purposes; that the patentee dwelt upon and remained in possession of the land until about 1868 or 1869, when he conveyed it to plaintiff's husband; that plaintiff's husband subsequently conveyed the premises through a third party to plaintiff, who holds the record title to the land; that defendant's father, George Zweibel, owned lands adjacent to this land on both the north and the east; that at a very early day he fenced his cultivated lands lying east of the land in dispute; that in 1871 he also fenced the lands lying north; that in 1875 he extended a fence from the south boundary of his lands practically to the river, thereby enclosing the lands in dispute with another tract of land called the Hamilton land, lying immediately west of it; that in 1878 defendant's father died, intestate; that defendant, his mother and brothers lived together on his estate until 1884. The only evidence of an attempted adverse holding of this land by defendant's father, was the fact of its being practically enclosed by the fences which he constructed for the purpose of surrounding other lands and also some evidence that the lands when enclosed were used by him for pasturing his stock; there is also some claim of adverse user from the fact that he took rocks from a stone quarry on the land, before it was enclosed. The latter claim, however, is not established because of the fact that at the time he took this stone, the patentee of the land was in the actual possession of it, which negatives the idea that such holding was adverse. Smith v. Hitchcock, 38 Neb. 104, 56 N.W. 791. The evidence of pasturing only tends to show that the land was used as a commons for that purpose up to the time of its enclosure, and that after the death of defendant's father, the mother and children occupied the homestead and used this with other lands enclosed for pasturage, until a division of the estate was made among them by partition deeds, in the year 1884. When the estate was voluntarily partitioned between the the heirs, defendant received a deed to the lands adjacent to the tract in dispute, but this deed did not purport to convey any of the lands in controversy. In connection with the voluntary partition of this land among the heirs of the deceased ancestor, the defendant filed an affidavit in which he described the lands owned by his father at the time of his demise, and did not include in this description any claim to the lands in controversy. After the division of the land in 1884, defendant remained in possession of what was called the old home place, and continued to pasture the disputed lands. Up to this time neither defendant nor his ancestor had ever paid any of the taxes on the land, but the taxes had been paid by plaintiff's grantor regularly until the year 1883, at which time the taxes became delinquent, and the lands were sold for the taxes of that year together with the taxes for 1860, 1861 and 1862. Defendant purchased this tax certificate. The year following, plain...