Adams v. Child

By the Court, Fitzgerald, C. J.: This is an appeal from a judgment of non-suit in an action of ejectment. Plaintiff’s complaint contained the following allegations: "1. That on the day of ..............., the plaintiff was and ever since has been seized in fee and entitled to the possession of those certain pieces and parcels of lands situate in Douglas County, described as follows: All that certain piece lying north of a certain fence used as a line fence by plaintiff and defendant, within the S% of the SB% of Section 34, T. 14 N., R. 19 E., and also that certain piece lying north of said fence within the N% of the NW% of Section 2, T. 13 N., R. 19 E., all in M. D. B. and M., and containing 20 acres of land, more or less. "That about the year 1856 plaintiff located upon then unsurveyed lands of the United States, and the predecessors in interest and grantors of defendant also located upon unsurveyed lands of the United States, and built said line fence described in paragraph 1, and that about the year 1863 said land were surveyed by the government of the United States, upon the survey of which it was ascertained that said line fence did not correctly follow section lines, bnt cut off and left to defendant’s predecessors in interest and grantors the lands described in paragraph 1, but that subsequently plaintiff obtained patents and became the owner in fee and entitled to the possession of all the following-described lands [183] (here follows description of land including land in question). "3. That all the lands settled in Carson Valley, Douglas County, prior to the government survey, were settled in similar manner as the lands settled upon by the plaintiff and defendant’s predecessors in interest and grantors, and the settlers thereof made similar mistakes with reference to their lines, and that upon surveys being made a general meeting of settlers was held, and it was agreed amongst them to square their lines in accordance with the public surveys at the pleasure of either dissatisfied party, at any time, and that said agreement has always been lived up to up to the date of this suit, and became the common law in the community where the lands of plaintiff and deféndant are situate, and that plaintiff and defendant’s predecessors in interest and grantors understood said agreement, and agreed to square their lines in accordance with said government surveys whenever deemed desirable by either party.” "4. That on or about May....., 1903, plaintiff began the planting of posts in accordance with said government surveys and in accordance with said agreement, and defendant and her agents forcibly ejected plaintiff from said occupation, and dug up and took away plaintiff’s posts from their positions, and ousted and ejected plaintiff from his possession, 'and now unlawfully withholds the possession of the lands described in paragraph 1 of this complaint from plaintiff, to the damage of plaintiff in the sum of five hundred dollars.” The foregoing allegations of plaintiff’s complaint are all that are material in determining the questions presented upon this appeal. Defendant, by her answer, admitted the location of the lands of plaintiff and defendant, the erection of the line fence, the subsequent survey of the land by the government, and the issuance of patents as alleged by plaintiff, but denied that plaintiff was, or ever had been, seized in fee, or otherwise, or entitled to the possession of the lands described in paragraph 1 of plaintiff's complaint, and denied particularly all the allegations .contained in paragraphs 3 and 4 of plaintiff’s complaint. Further answering, defendant averred that there was an agreement between the predecessors in interest of plaintiff and defendant that when [184] patents to the said land should be obtained that plaintiff’s predecessors in interest should deed the said lands to defendant’s predecessors in interest, and further that defendant and her grantors and predecessors in interest had held said lands adversely to plaintiff and to all the world for more than forty years prior to May, 1903, and down to this date, and that she was the owner of said land. On these pleadings the parties went to the trial of the case. At the trial the plaintiff put in evidence paper title to the lands, to wit, patents from the United States to his predecessors in interest and conveyances, mean and direct, from them to him, and then rested. Defendant thereupon moved for a non-suit on the ground that mere paper title alone under the facts stated was insufficient for a recovery, but that in addition evidence of the alleged agreement to surrender possession of the lands should be given, and that in the absence of such evidence, defendant’s possession, being an adverse possession, would defeat the action. The trial court then ruled in favor of the defendant. The court then offered "to reopen the case” and permit plaintiff to put in evidence of his alleged agreement for the surrender of the possession of the lands. This offer was declined by the plaintiff, whereupon the court gave judgment of non-suit in favor of the defendant. This ruling and judgment are assigned as errors here. I think the court did not commit error in either the ruling or the judgment. From the proofs and the facts admitted by the pleadings in this case, it appears without contradiction that from about the year 1856 to the year 1903 plaintiff and defendant and their grantors and predecessors in interest had acquiesced in the location of the line fence between their respective properties, and they had so acquiesced for a period of forty years or thereabouts after the location of the true line was known. The authorities are abundant to the point that where coterminous proprietors of land have established a division line between their respective properties and have acquiesced in its location for a time at least equal to that prescribed by the statute of limitations, although it may not be the true line according to the calls of their deeds, they [185] are thereafter precluded from claiming that it is not the true line. (Burris v. Fitch, 76 Cal. 395; Cooper v. Vierra, 59 Cal. 282; Columbet v. Pacheco, 48 Cal. 396; Sneed v. Osborn, 25 Cal. 626; Pierson v. Mosher, 30 Barb. (N. Y.) 81; Dyer v. Eldridge, 136 Ind. 654, 36 N. E. 522; Dupont v. Starring, 42 Mich. 492; Davis v. Mitchell, 65 Tex. 623.) Counsel for plaintiff argues ingeniously, yet not logically, legally, or soundly, that the defendant and her predecessors in interest were in by a "permissive possession,” inasmuch as the defendant alleges that there was an agreement as to the land, and that therefore the burden was on the defendant to show what that agreement was. The defect in this argument is this: The agreement as alleged by the defendant was that the defendant should be left in her possession of the lands in dispute just as she was, and in addition thereto that she should receive the paper title, a conveyance of the lands. This, it would seem, clearly left the burden of proof .still remaining on the plaintiff to present evidence of something to overcome defendant’s possession for a time sufficient to give title under the statute of limitations for actions of this kind. Had plaintiff put in evidence of an agreement as he alleged it, to wit, that the defendant was to deliver possession of the lands, then the defendant might possibly have been compelled to put in evidence of an agreement as she alleged it to overcome plaintiff’s evidence, or been cast in the suit. But without such evidence on the part of plaintiff, he failed to offer any evidence at all on an essential, necessary, vital, and material allegation of his complaint, and when by the court permission and opportunity to do so were offered him and he declined to avail himself thereof, the court properly gave judgment of non-suit against him on motion of counsel for defendant. The judgment of the trial court is affirmed.