Levy v. Yerga

Reese, Ch. J. This is an action in ejectment for the possession of a narrow strip of land within the inclosure of defendant, and which it is alleged is the property of plaintiff in error, the adjoining land owner. The answer of defendant in error denied the plaintiff’s ownership, averred ownership in defendant, and alleged that he had “ been in the lawful, open, notorious, peaceable, exclusive, and continuous possession of said premises for the period of more than ten years prior to the commencement” of the suit. A trial was had to the court without the intervention of a jury, which resulted in a general finding and judgment in favor of the defendant in the action. It is conceded by plaintiff that defendant has been in possession of the property for more than ten years prior to the commencement of the action, and that if such possession was notorious and hostile to plaintiff and his grantors, that the statute has run. But it is insisted that such is not the [766] possession of defendant, but that his inclosure was only-intended to reach to the true line, and that his possession •has been only with reference thereto; that his occupation of the land belonging to plaintiff and his grantors has been solely by mistake, and that defendant’s claim of ownership extended only to the land described in the deed, the property being described by metes and bounds. "We have carefully examined the evidence submitted to the trial court, and find that sufficient evidence was submitted to justify a finding that defendant’s occupation has beeix with reference to fixed boundaries, existing at the time of his purchase, and which it was supposed was within the actual jmrchase made by him, and without refex’ence to the particular land described in the deed. There is proof that, about the time of the purchase, the land was surveyed, and that by such survey it was found that a ditch, which had been previously excavated by an occupant, was upon the line. And that in the construction of defendant’s fence, he built with refex’ence to said ditch as the line, placing this fence immediately inside of it. And that the whole of his possessioxx had been with reference to sáid ditch as his boundary line, and as a monument thereof. This ditch was constructed, perhaps, prior to the year 1856, and as stated by one of the witnesses, was originally intended as a “ ditch fence,” upon that boundary line. While it appears the property has not been occupied during all this time, yet it is shown that during the time it was occupied, it was with reference to the ditch referred to, as the boundary line; that the occupancy has been continuous, and with reference to it, for more than ten years prior to the commencement of the action. Under the rule stated in Tex v. Pflug, 24 Neb., 666, and which we believe to be correct, the statute of limitation had run in favor of defendant, at the time of the commexicement of the action. [767] It is shown that, during the occupation of defendant, he leased from plaintiff’s grantor the tract of land adjoining upon the west, which, it is alleged, included the strip referred to, and that for a number of years he had it inclosed for the purpose of a pasture, and that thereby he recognized the ownership of plaintiff, and that the running statute was broken, his possession during that time not being adverse. It is clearly shown by the evidence that, at the time of the lease referred to, and during the whole thereof, the land in question was inclosed by defendant as his own property; while it is true that he rented what was known as the Thompson tract, yet it is very» evident that in the contract of lease, which was oral, and in which contract the particular strip referred to was not treated as a portion of the Thompson tract, nor was defendant’s possession thereof in any manner changed from what it had been prior thereto. The rule stated in Tex v. Pflug, on this part of the case, must control, and the decision of the district court, that the tenancy was not inconsistent with defendant’s possession as owmer, was correct. The judgment of the district court is therefore affirmed, Judgment affirmed. The other judges concur.