Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-05-13
SUPREME COURT DECISION.
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terial 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
iand by the government and the issue
OF patents as aMese0 Dy pialntln, but
denied that plaintiff was, or ever hal
been seized IN lee or OLnerwlse or en-
titled to the possession Of the lands
described III paragraph l OF pialntln" S
complaint, ana Genled particularly all
.Le allegations contained in para
graphs and o. pIalntlns COM
PANT Further answering defendant
aerred that there was an agreement
between the predecessors in interest
u pialntln ana uelenuanI That when
patents to the sad lands should be
obtained that pianIims predecessors
III interest snOulu 0eed the said lands
to deienuants predecessors in interest
an further that defendant and her
grantO,s and predecessors in interest
nae he'd sad lana adversely to plain
TIL and TO all .ne world for more than
forty years prior to May 1913, and
down to this date. and that she was
Lne owner OF SAID land.
On these pleaulngs the parties went
to trial OF the case.
At the trial the plaintiff put il
evidence the paper title to the lands,
to wit: patents from the United States
to his predecessors In interest an |
/ conveyances, mean and direct, from
them to him. and then rested
!, Defendant thereupon moved for :
nonsuit on the ground that mere paper
title alone under the facts stated was
! insufficient for 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, defend
ants possession being an adverse
possession, would defeat the action.
The trial court then ruled in favCr
of the defendant.
The Court then offered ito reopen
the case" and permit plaintiff to put
in evidence of his alleged agreement
for the surrender of the possession OF
tlte HIS oAiCl NcS bt1iihNe
by the plaintiff whereupon, the court
save judgment of nonsuit in favor u
the defendant.
This ruling and judgment are as
signed as error here. | think the
court did not commit error in either
the ruling or the judgment.
From the proofs and the facts al
mitted by the pleddings in this case
ii appears without contradiction tha
from about the year 1856 to the veal
1903, plaintiff and defendant and thei
grantors and predecessors in interes
had acquiesced in the location of the
line fence between their reSDectiv.
properties, and that they had S,
acquieScedfOr a period Of forty years q
Whereabouts after the location of tn,
true line was known
The authorities are abundant to tn
point that where coterminOus prOp"i
etors Of land. having established ;
division line between their RESPECTIVE
: properties and have acquiesed in it!
location for time at least equal (
that prescribed by the statute c
limitations. although it may not ~
: the true line according to the call:
, of their deeds, they are thereaftet
precluded from claiming that it !:
not the true line (Burris VS. Fitch
76 Cal. 1886: Cooper VS. Nierra % IL
81: Columbet VS. Pacheco, IS ID. 1916
: Sneed vs. Osburn, %. Id. 626: Pierso,
VS. Nosher 80 Barb. IN. " 81; DYE
, vs. Eldridge, 1876 Ind. G54. So N f. So
Dupont VS. Starring AZ Mich. 492
Davis VS. Mitchell. So Tex. 623.l
Counsel for plaintiff argues ingeni
ously. yet not logically, legally ~
soundly that the defendant and he
predecessors in interest We're in b.
a .'permissive possession" inasmucj
as the defendant alleges that Their
, was an agreement as to the land
and that therefore. the burden was O.
the defendant TO show what the agree
ment was The defect in this arGl
ment is this:
The agreement as alleged by TIA
defendant was that the defandan
should be left in her possession o
the lands in dispute just as she was
and ia addition thereto that she shoul;
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 presen
evidence of something to overcom
defendants possession for time sui
ficient to give title under the statut
II of limitations for actions of this kind
II Had plaintiff put in evidence of a
II agreement as he alleged it. to W.T.
that the defendant was to delive
possession of the lands. then the d.
| PENDANT might possibly have bee
compelled to put in evidence of a
agreement as she alleged it to ove'
come plaintiffs evidence, or been ca
in the suit. But without sdch ev
dence on the part of plsntiff, !
III failed to offer any evidence at :
on an essential, necessary, vital al
material allegation Of his complain
II and when by the court permissi,