The silver state. [volume] (Unionville, Nev.) 1870-1903, 1893-08-05

Killabrew, appellant.
Appeal from the district court OF the
state of Nevada, Humboldt county. /
A. E. Cheney, judge. NJ. S. Bonni-
field for respondent; L. A. Buckner,
for appellant.
BY MURPHY, c. j..
Action Of ejectment, for the recov-
cry OF the possession of 100 acres of
unsurveyed government land the
court found in favor of the plaintiff,
and against defendant. A motion
for new trial was overruled, and
defendant appeals.
The plaintiff bases his right to re-
cover upon prior possession, and the
fact that the defendant moved onto
the land and occupied the house
thereon with the consent of the
plaintiff.
The answer denies the plaintiffs
possession and his right thereto, al
leging that in the month of April,
1892, the defendant made a peaceable
entry on the land described in the
complaint; that he has had peaceable
possession of said land ever since,
with the bonafide intention and
claiming the same as and for g home
stead.
The evidence in this case estab-
fishes the fact that the plaintiff pur-
chased the possessory right of one
Metcalf in 1889; at the date OF said
purchase the land was enclosed with
fence of posts and barbed wire /;
there was dwelling house, stable
and cross fences on the land.
] During the year 1890 the plaintiff
leased the land to the son Of his gran
tor; in the spring OF 1891 the defend
ant asked permission of the lessee of
the plaintiff to move into the house
on the land in controversy, giving as
a reason that ii the water would con-
tinue to rise it would drive him out
of his own house, and after obtaining
the consent of the plaitiff, Metcalf,
4 the lessee, told the defendant where
he could find the key to the door OF
the house and to move in rs he,
Metcalf, was going away.
/ 1t also appears that the plaintiff
and defendant cultivated portion OF
the land in dispute, the plaintiff fur
nishing teams, seed and farming inn
1 plements, against the defendants
labor; all other expenses were to be
borne between them, the crops when
gathered to be divided share and
share alike. This agreement contin-
ued during the years 1891 and 1892.
In January, 1898, the plaintiff was
informed that the defendant was
claiming the land as q homestead.
He demanded possession of the same
and was refused, hence this action.
The plaintiff never lived on the land
in person; after ne purchased the
possessory right and the improve
ments from Metcalf senior, he leased
the same to Metcalf junior, who re-
NAMED in possession as the tenant
of the plaintiff until the spring of
1891, when he allowed the defendant
to enter as above stated.
The principal question presented by
the record in this case is the same rs
decided by this case in Nickals VS..
VIM, IL Nevada 102, and Gender vs..
Miller, No. 1888, ~ Pac. 1888. We are
satified with the conclusions reached
in each OF the decisions, and they
must be held conclusive of such ques-
tions. See also Rourke VS.. McNally,
ct. al, SO Pac. 81, and authorities
therein cited.
The appellant contends that the
court erred in denying his motion TO
strike out the deed from Metcalf to
plaintiff, which had been admitted in
the evidence, the grounds of the OBJ
lection being, that if the plaintiff
claimed either under federal law, or
intended to apply to the state to pur-
chase the land. he would have to