Greene v. Dwyer , 33 Minn. 403 ( 1885 )

Gileillan, 0. J.¹

The “points” which rule 11 of this court requires that the appellant or plaintiff in error shall deliver to the adverse party are to be taken as his assignment of errors, i. e., as a statement of the points wherein it is claimed that the court below erred in the order or judgment brought here for review, and this court will not ordinarily consider any other, unless, perhaps, the question of jurisdiction over the subject-matter is presented by the record. All claims of error not specified in the points are to be deemed waived. If the appellant have omitted from his points any specification of error which he wishes to make, and the time given by the rule to serve his points has passed, lie cannot add new points, unless by consent of the other party,, or by leave previously obtained from this court or a judge thereof-. The appellant having attempted to add a new point without such consent or leave, the point is disregarded.

The court below was right in deciding that plaintiff had not shown such a possession as entitles him to bring an action under the statute, and, as he based his right to bring that kind of action solely on possession, his action was properly dismissed. Under the statute, unless the land be vacant, the plaintiff must have actual possession at the time of bringing the action. Wilder v. City of St. Paul, 12 Minn. 116, (192.) Constructive possession is not enough. The land appears to have been in possession of defendant, so far as in its then situation it was practicable to be in possession; that is, he fenced it, kept the fence in repair, and during the summer months pastured his cattle upon it; (there was no house on it.) The only act of possession by plaintiff was, after a deed of the land was made to him, to break down part of the fence and then walk across the land. These acts were of too casual, fugitive, and temporary a character to constitute possession after he had committed them.

Order affirmed.

1 Berry, J., was absent and took no part in this case.