Horbach v. Miller , 4 Neb. 31 ( 1875 )

Gantt, J.

The defendant in the court below brings the cause to this court by petition in error, and among the errors complained of, it is urged that the court below erred in giving to the jury the second instruction asked by Miller; also in admitting in evidence declarations of the parties, relating to an effort to compromise tbe difference, between them in regard to the subject matter of the suit; and in submitting to the jury the question as to the plaintiff’s adverse possession of the land in controversy; but from , the record it clearly appears that in respect to the' ruling and charge of the court upon these matters now assigned for error, there were no exceptions taken by the plaintiff in error upon the trial of the cause in the court below. Therefore, in regard to all these alleged errors, it is only necessary to remark that in order to obtain a review in this court upon any decision, ruling or charge made or given by the district court, the party complaining must take his exceptions thereto at the proper time.

In respect to the third ground alleged for a new trial, it need only be observed that the record clearly shows the instruction asked by the plaintiff in error, was given to the jury as asked, and not refused.

It is also complained that the court erred in giving to the jury the first and fifth instructions asked by the defendant in error, and in giving a portion of the charge orally to the jury, but as these points were not made in the motion for a new trial, under the rule which seems now to be well settled, they must be considered as waived. The Midland Pacific Railroad Co. v. McCartney, 1 Neb., 404. Mills v. Miller, 2 Neb., 317. Wells, Fargo & Co. v. Preston, 3 Neb., 446; and in State v. Swartz, 9 Ind., 221, it is said “it is due to the lower court that its errors, if any, be pointed out, so that it may retrace its steps, while the record is yet under its control.” It is, however, contended that by statutory provision it shall be error and sufficient cause for the reversal of the judgment, if any charge or instruction, or any portion thereof, be given to the jury by the court without first having reduced the same to writing. This is true, and it is equally true that the admission of illegal or incompetent evidence on the trial of a cause, or the refusal to serve an instruction, or the giving' of an instruction to the jury, may be sufficient cause for the reversal of a judgment, yet, under the rule as settled, if the point is not made in the motion for a new tidal, it will be considered as waived. Why should a small portion of a charge, orally given to the jury, be made an exception to this rule? We have heard no good reason why it should be, and we think it would be unjust to the court below to make such an exception to the rule.

Upon the question of the identity of the block in controversy, it is insisted that the court erred in instructing the jury that in order to identify it, they might take into account the time when the fence was built on block 128J, the fact that it was about the time of the survey when the corners were easily ascertained and all the other facts given in testimony which throw light upon the question, and if they believed the testimony warranted it they might presume the fence was built on the line of said block 128^-. As regards the subject matter of this instruction, we think there is no error; it was in effect only permitting the jury to arrive at a fact from circumstantial evidence. Blackstone says that “next to positive proofs, circumstantial evidence, or the doctrine of presumptions must take place; for when the fact cannot be demonstratively evinced, that which comes nearest to the proof of the fact, is the proof of such circumstances as either necessarily or usually attend such facts. These are called presumptions.” This presumption, however, must rest upon facts proved, for, when the main fact in respect of the subject matter in controversy, cannot be proved by direct testimony, such fact is arrived at by the proof of other facts so associated with the fact in question, that in the relation of cause and effect, lead to a satisfactory and certain conclusion. Therefore presumptive evi- . dence consists in the proof of minor or other facts, incidental to or usually connected with the fact sought to be proved, which when, taken together, inferentially, establish or prove the fact in question to a reasonable degree of certainty. We think the instruction was substantially in. accordance with the principles of the law as above „ stated. But in respect to the same question, at the request of the plaintiff in error, the jury were further instructed that unless they believed from the evidence that the land described in the petition, was the identical land described in the deed offered in evidence by the defendant in error, they must find for the plaintiff in error. Hence, it seems clear from the record that the question of the identity of the land in controversy, was fairly and correctly submitted to the jury.

On the sixteenth day of January, 1858, the plaintiff in error, by deed sold and conveyed block 172-J-to Samuel Moffat, and after several intervening conveyances of this title by deed, it vested in Miller who now claims title to the land by virtue of his deed to the property. Horbach claims title to the land by virtue of an alleged adverse possession of the same. It is, however, contended on the part of the defendant in error, that such adverse possession must have been for the term of twenty-one years, in order to. establish a title to the land, because at the time the plaintiff in error entered into the possession of the land, such period of time was the statutory limitation. But the act of February 12, 1869, changed the statutory period, and limits actions for the recovery of real estate to ten years; and the counsel for plaintiff in error contends that this latter act applies to this case, and fixes the time when his title becomes complete. It will be observed that by this act it is specially provided that it shall not take effect until the first day of July, 1869. Hence it is a question of construction as to what is the effect of this act on existing claims. We think the rule is correctly laid down in the case of Bigelow v. Bemen, 2 Allen, 497, as follows: “It is well settled that it is competent for the legislature to change statutes prescribing limitations to actions, and that the one in force at the time suit is brought is applicable to the cause of action. The only restriction on the exercise of this power is, that the legislature cannot remove a bar or limitation which has already become complete, and that no limitation shall be made to take effect on existing claims without allowing a reasonable time for parties to bring action before these claims are absolutely barred by a new enactment.” In this case the court held .that there was a reasonable and sufficient time given to bring the action between the time of the passage of the act and the time when it took effect. And in Smith v. Morrison, 22 Pick., 433, it is held that what constitutes a reasonable time, in such case, is a question within the exclusive province of the legislature to determine. The ground on which the rule seems to be based is, that the right which the defendant has to bar an action by the statute- of limitations, does not originate in or flow from any contract, and therefore this change of remedies does not impair private or vested rights which flow from or are incidental to contracts. Therefore these remedies may be altered or changed within reasonable limits, without impairing contracts or private or vested rights. Bingham v. Bigelow, 12 Met., 273. In view of' these principles of law it seems clear that the legislature, in the act of 1869, fixed the time to bring actions on existing claims to real estate, before such claims should be absolutely barred by the new enactment.

Now it is said that the elements of all title are possession, the right of possession, and the right of property; hence if the adverse occupant has maintained an exclusive, adverse possession for the full extent of the statutory limit, the statute then vests him with the right of property, which carries with it the right of possession, and therefore the title becomes complete in him. In Atkyns v. Horde, 1 Burr, 119, Lord Mansfield says that “twenty-one years is a positive title;” in Stokes v. Berry, 2 Salk., 421, it is held that this title will support ejectment; and in Graffins v. Totenham, 1 Watts and Sergt., 488, it is said that the effect of the statute is such as to transfer to the adverse occupant the title against which it runs. Gibson, J., says that “the title of the original owner is unaffected and untrammeled till the last moment, and it is vested in the adverse occupant by the completion of the statutory bar; the transfer has relation to nothing which preceded it; the moment of conception is the instant of birth.” Therefore “the operation of the statute takes away the title of the owner and transfers it in legal effect to the adverse occupier;” and “one who purchases the written title of the owner, buys a title which, by operation of law was fairly vested in the adverse occupant.” Schell v. The Williams Valley Railroad Co., 35 Penn. State, 204.

It is, however, insisted that there must not merely be possession, but that this possession must be under a claim of right for the whole statutory period. This Is true; but the question is, what constitutes such a - claim of right? In answer to this, it is ' only necessary to observe that the rule seems to be well settled that acts of notoriety, such as building a fence round the land, entering upon the land and making improvements thereon, raising crops and felling trees thereon, are presumptive evidence and evincive of intention to assert ownership over and possession of the property; and taxation of the land for a series of years to the person claiming it, and the payment of taxes by him are competent evidence tending to show ownership. Elliott v. Pearl, 10 Pet., 412. Allen v. Gilmore, 13 Maine, 178. Little v. Libey, 2 Greenleaf, 242. Miller v. Shaw, 7 Sergt. and Rawle, 136. Farrer v. Fessenden, 39 New Hamp., 277. Angell on Limitations, Sec. 395. So is possession made out by placing on the premises buildings and receiving the rents and profits thereof. Poignard v. Smith, 6 Pick., 177.

We think that under these rules of law, there was sufficient evidence offered on the trial to submit the case to the jury, to determine as a question of fact, whether the plaintiff in error had maintained his allegations of adverse possession, and the submissson of the case to the jury was, under the instructions of the court, at the request of the plaintiff in error, that if they believed from the evidence that the plaintiff in error, for ten years next before the commencement of the action, was in the actual, contimied, and notorious possession of the land in controversy, claiming the same as his own against all .persons, they must find for the plaintiff in error; and furthermore, that enclosing such land within a fence— the maintenance of such fence — cultivation of the land, and payment of taxes on the same for said period, with said intention, is sufficient in law to constitute adverse possession. We are satisfied that under these instructions, the question was fairly submitted to the jury, in accordance with the rules of law above stated, and that in this regard there was no error committed in the court below.

It is assigned for error that the court permitted a map of the town to be offered in evidence by the defendant in error, to the admission of which the plaintiff in error objected. The record does not show that any ground of objection was stated, and therefore it would be difficult for this court to determine, in this case, whether there was or was not error in this ruling of the court. In all such cases the objections should be stated, for if the evidence was admissible for any purpose, it should be admitted: and in this case the admission of the evidence was proper simply to show the jury the arrangement of the blocks and streets of the town, in connection with the testimony of the surveyor.

On the whole we think, as shown by the record there was no error, and the judgment should be affirmed.

Judgment affirmed.

Maxwell, J., concurred. Lake, Ch. J., having tried the cause in the court below, did not sit.