Culbertson Irrigating & Water Power Co. v. Olander , 51 Neb. 539 ( 1897 )

Post, C. J.

The defendant in error, Frank Olander, as plaintiff, in the district court of Hitchcock county recovered judgment against the Culbertson Irrigating & Water Power Company on account of the unauthorized construction by the latter of an irrigating ditch upon his, plaintiff’s, land.

In this proceeding to review the judgment mentioned we will first notice the contention that the plaintiff below failed to show such a title to the land described as will authorize him to recover for the alleged trespass. It was charged in the petition that the plaintiff therein entered said premises as a homestead under the laws of the United States in the month of October, 1888, and that he had continued in possession thereof until the commencement of the action, to-wit, October 17, 1892, and that the defendant company, in the years 1891 and 1892, without permission of the plaintiff and against his express command, dug and constructed the ditch aforesaid over and across said land, to his damage, etc. The aforesaid allegations, although put in issue by the answer, were sustained by the undisputed evidence, and disclose a title in the plaintiff below which entitles him to recover for the wrongs complained of. The actual Iona fide possession of land under a claim of right is such a title as will support an action for trespass against one not shown to be in privity with a better title. The rule thus stated was in Keith v. Tilford, 12 Neb., 271, applied to'a pre-emptor of public lands after the time within which he was by law authorized to complete his purchase. In Red River & L. W. R. Co. v. Strue, 32 Minn., 95, it was held that a settler who has entered public lands of the United States, under the provisions of the homestead law, has from the date of such entry an inchoate title, which is, in a legal sense, property, subject to defeat only by his failure to comply with the conditions imposed by the act of congress, and that as against such title the defendant railroad company acquired no rights under the act of March 3, 1875, entitled “An act granting to railroads the right of way through the public lands of the United States.” And in Carner v. Chicago, St. P., M. & O. R. Co., 43 Minn., 375, the plaintiff, who had entered land under the “Timber Culture Act,” was held entitled to recover for trespass committed during the term required to perfect his right to a patent. It was also held that his right of action was not affected by the subsequent surrender of his claim. The cases cited by plaintiff in error, with the exception of Flint & P. M. R. Co. v. Gordon, 41 Mich., 420, involve the rights of claimants of public lands as against the government, and are, accordingly, not in point. Of the case last mentioned it is sufficient that it is opposed to the doctrine asserted by this court in Keith v. Tilford, supra, with which we are, from a reexamination of the subject, entirely satisfied.

Exception was taken to the giving and refusing of certain instructions relating to the measure of damage, but which, in view of the special verdict rendered, do not require notice in this connection. In addition to'the general verdict for the plaintiff below, in the sum. of $200, the jury found as follows:

“1. Do you find from the evidence that the defendant wrongfully entered upon the lands in the possession of the plaintiff? Answer: Yes. * * *

“4. If you find that plaintiff was damaged in bis possession of said premises by the wrongful act of tbe defendant, wbat amount in dollars do you find was the value of sucb injury to tbe plaintiff’s possession? Answer: $200.

“5. If you find an amount as tbe value of sucb injury to plaintiff’s possession, wbat amount, if any, is included in said sum as compensation or pay for tbe land occupied by said ditch? Answer: None.”

Aside from tbe value of tbe land actually taken, estimated at fourteen acres, worth $12.50 per acre, there was no proof whatever of substantial damage. There was, it is true, evidence tending to establish tbe foundation for special damage, but tbe effort was in every instance abandoned, voluntarily by tbe plaintiff, or upon tbe adverse ruling of tbe court, short of the actual proof of damage. It is to be regretted, on account of tbe obvious merit of defendant in error’s claim, that tbe district court failed to direct a verdict in bis favor for tbe value of so much of bis land as was appropriated for the purpose of tbe ditch; but tbe jury having found specially against him as to the only issue upon which be was, upon tbe evidence, entitled to recover, it follows that such special finding will control the general verdict in bis favor. It follows, too, that tbe judgment must be reversed and tbe cause remanded to tbe district court.

Reversed.