Gilkey v. Murray

Mr. Justice Harris delivered the opinion of the court. Mascall and Jackson rented the Zack Smith ranch to A. J. Whisman in 1894. When Whisman took possession of the land the fences were down; he repaired the fences, and after living there about three years he sold his interest to Joe Juaquin, who lived on an adjoining ranch. Juaquin took the crops and used the premises about one year. W. E. Mascall and Annie Jackson, on September 1, 1899, deeded the Zack Smith ranch to Henry A. Smith, who on July 9, 1906, conveyed it to James M. Sweitzer, who in turn transferred the property to Allen Gilkey and his wife, Angie Gilkey, by a deed dated May 12, 1909. In the order already mentioned each grantee lived on the premises until making a conveyance to his successor, and the Gilkeys were still in possession at the time of the trial. The Murrays did not, at any time after 1891, have the actual possession of any part of the Smith ranch, although in the winter of 1901, referred to as the “hard winter/’ the Murrays bought and hauled some hay from the Thompson ranch and fed it on the Zack Smith ranch to some sheep, which they kept there about two months, probably with the consent and permission of Henry A. Smith, who was living on the place at the time. The Murrays knew that [655] the Gilkeys and their predecessors claimed to own the land, and the defendants did not assert any claim to the premises until the commencement of this suit. While the continuity of the possession was debated, it being claimed that there was a break between the departure of Whisman and the coming of Henry A. Smith, still the evidence inclines much more strongly toward the conclusion that the possession was uninterrupted; but even if there was an absence of continuity, the principles announced and applied to the cognate case of Mascall v. Murray, ante, p. 637 (149 Pac. 517), govern and control the decision of the instant controversy, with the result that the decree of the Circuit Court is affirmed. Affirmed.' Rehearing Denied.