Lillianskyoldt v. Goss

Opinion by M. Sohaeffeb, C. J.’ This is an action to recover possession of an undivided interest in a certain tract of land in Kane county, containing 44.25 acres. The complaint charges that the plaintiff and the defendant were the joint owners and tenants in common, and in the peaceable possession of said -land; and that afterwards [296] the defendant forcibly and unlawfully ousted and ejected the plaintiff therefrom. These allegations are denied by the defendant in his answer. The evidence shows that on or about the 29th of January, 1876, the plaintiff and one H. E. Logan attempted to make a location of a mill site on this land; and that in March, 1876, the plaintiff chopped some wood, and burned some coal on this land, the coal to be used to sharpen some tools at a mine some distance away. That in April or May, 1876, plaintiff went from there to Beaver county and did not return until March, 1877, about a month after the defendant had taken possession of the land. The said Logan dug a ditch on said land, about thirty feet long, eight or tea inches deep and about a foot wide, in December, 1876; and in February, 1877, he, Logan, w*as on said laud “malting levels to find out where the water could be carried.” The defendant then came there in search of a mill site, Logan claimed an interest there in his own name, defendant bought him out and took possession, built a mill and water ditch on said land at an aggregate cost of some sixty thousand dollars. There is no evidence that a location was made on this land, or that any valid claim thereto accrued to the plaintiff by virtue of any statute of the United States or of this territory, and the jury were instructed “That there is no evidence that the jury can consider that the plaintiff’s alleged claim was under the law of Congress, or the possessory act of Utah, or any mining custom, and the plaintiff to recover, must show that he was in the actual possession of the premises at the time of the defendant’s alleged entry.” The main alleged errors relied upon by the appellant are, first, that the complaint docs not show what interest the plaintiff claims in the premises. The complaint alleges a joint ownership with the defendant and a co-tenancy of the premises. It does not pretend to define or state what the specific interests of the several co-tenants are. There is no doubt that this is a defect in the complaint; but it might possibly have been cured -by a verdict. In this case, however, the verdict is [297] equally uncertain, so that no judgment defining the interest of the plaintiff in the premises, could be properly rendered. Neither does the judgment specify what right the plaintiff had in the premises; but it simply orders and adjudges that the plaintiff be restored as joint owner and tenant in common with the defendant to the possession of the premises. This uncertainty characterizes the complaint, verdict and judgment and is of itself sufficient to reverse this judgment. The second error relied upon is that “ The verdict is against the evidence and against the law.” There is no proof of actual personal possession by respondent at the time of the alleged ouster. The respondent’s attorney, however, insists that respondent and Logan were partners and co-tenants, so that the actual possession of Logan inured to respondent. It is certainly true that the possession of one co-tenant is, as to all other persons, the possession of all; but I cannot conceive how that rule applies to this case. “ Tenants in common are such as hold lands and tenements by any Lind of title, either in fee, for life, for years, or at will.” Bouvier’s L. Dictionary, p. 580. There can be no tenancy in common in a mere actual possession by one. There must be some right or title to the possession, and not the mere actual possession, to create a co-tenancy. “ Actual possession exists where the thing is in the immediate occupancy of the party;” B. L. Diet. p. 349; or, as the court in this case instructed the jury, “Actual possession is the subjugation of the premises to the use and dominion of the claimant.” There may be a partnership or tenancy in common in a right or title to land, but I cannot see how there could be a partnership or tenancy in common in an actual possession unless all the partners or tenants in common were actually occupying the land. In this case there was no such occupancy by the respondent; and the testimony shows that Logan did not even claim to hold the possession of the land in whole or in part for the respondent; so that I can see no evidence to support the verdict in this particular. “ Where a party enters upon land knowing the same to be a [298] part of the public domain, he is only entitled to recover as against a trespasser having no title upon showing such facts as will be sufficient to raise a presumption of title in himself,” and in cases like this one the presumption of title not appearing, as it could appear only from the actual possession, the possessio pedis, there is no right to recover shown by the evidence; the verdict is against the evidence and the law. Eureka M. Co. v. Way, 11 Nev. 171. There are several errors assigned upon the instructions of the court which we do not deem it necessary to examine as the judgment has to be reversed for the reasons already stated. EmebsoN, J., concurs. BoRemáN, J., delivers the following special' opinion: I agree with a majority of the court in sending this cause back to the district court, but one of the grounds urged as a basis for this action, I think is untenable. Plaintiff and Logan (from whom defendant received possession) went into possession together and claimed and occupied the ground thus, and operated jointly in performing acts indicative of a joint claim of ownership. Tenants in common may hold by the same or separate titles or rights, and unity of possession is all that is necessary. Here there was unity of possession under the same title or right, to-wit, the naked possession. Logan held by no other right or title, nor did plaintiff. Naked possession is a degree of title although the lowest and most imperfect. 2 Bl. Com. 195. Logan and plaintiff were, therefore, tenants in common, and Logan’s possession was therefore that of plaintiff', and plaintiff s temporary absence did not affect his right, nor could Logan’s acts or words defeat it. Gross went into possession under Logan with a full knowledge of plaintiff’s rights. Hence he held the same relation to plaintiff that Logan did, and Logan could not deny plaintiff’s rights. The other ground of the court’s action I believe to be correct.