Runkle v. Welty ( 1907 )

Oldham, C.

This was an action in ejectment instituted by the plaintiff against the defendant for the purpose of determining the title and right of possession to a strip of land in Furnas county, Nebraska, on the boundary line between the Jands of the plaintiff and of the defendant. The answer filed was a general denial. There Avas a trial of the issues to the court and jury, and at the close of plaintiff’s testimony defendant rested, and moved for a verdict in his favor. This motion AAras denied, and, the value of the rents and profits having been stipulated between the parties, the court directed a verdict in favor of the plaintiff, and defendant appeals.

Plaintiff claimed the land in dispute as part of a quarter section of land owned by him, and, in proving title to bis quarter section, he merely introduced the deed of his immediate grantor, without attempting to connect his title to a grant of the land from"the United States government, or to a common source from which each of the parties claims. Plaintiff’s testimony showed that in 1894 the disputed boundary was surveyed by one Phoebus, then the county surveyor of Furnas county, and that after this survey the defendant erected a fence along the line of this survey, and had held possession under claim of ownership of the tract for between eight and nine years prior to the institution of this suit. There was no evidence in the record that either plaintiff or his immediate grantor had ever been in actual adverse possession of the disputed tract. There was evidence, however, tending to impeach the accuracy of the Phoebus survey, which started from a disputed corner as located by one Hill, while county surveyor in 1884. Plaintiff based his cláim of title on sur- • veys made from the disputed corner as located by county surveyor Hasty in the year 1880. He also offered proof tending to show the accuracy of the Hasty survey.'

Now,.the question arises as to whether, in this state of the record, the trial court was justified in directing a verdict in favor of the plaintiff, when the value of the rents and profits of the land was not in dispute. In an action of ejectment, when the plaintiff’s testimony shoAvs defendant in possession of the disputed lands under a claim of OAvnership, plaintiff must then recoArer on the superiority of his title, and, if he relies on a record or paper title, he must sIioav a regular chain of title from the government, or from some grantor in possession, or from a common source from which each of the litigants claims. No chain of title, Avhich does not reach back to the sovereignty of the soil, is sufficient of itself to constitute prima facie evidence of title, and, AAdiere the chain does not reach the sovereignty, there must be proof that some one of the grantors in the line of title Asms in possession before the defendant in possession can be required to justify his holding. 10 Am. & Eng. Ency. Law (2d ed.), 484. If, instead of relying on his record title, plaintiff claims title by adverse possession of the tract of land in dispute, and merely relies on the deed to sIioav color of title, he cannot recover under the proof offered, because it fails to show that either plaintiff or his grantor has been in possession of the disputed tract for the statutory period.

It is contended by appellee, hoAvever, that, “where defendant offers no eAddence of title, the prior possession of the plaintiff is of itself sufficient to entitle him to recoArer.” The only correction on this statement of the rule is that, Avhere no evidence is offered by either party tending to show title or right of possession in the defendant, then plaintiff’s prior possession under a claim of ownership is sufficient to entitle him to recoArer. But, if evidence is offered, no matter whether by defendant or plaintiff, which tends to show that defendant is in possession under a claim of ownership, then this rule does not apply. We have no quarrel with the rule, that proof of possession under claim of ownership is sufficient to entitle plaintiff to recover in an action of ejectment against a mere trespasser, who enters without right, but this rule has no application to the facts shown by the plaintiff’s testimony in this case. We think that plaintiff, having failed to trace his record title to the general government, or to a grantor in possession, or to a common source from which both parties claim, was not entitled to a directed verdict. Omaha Real Estate & Trust Co. v. Reiter, 47 Neb. 592.

Ejectment: Evidence. Where, in an action in ejectment, the plaintiff’s chain of paper title does not reach back to the sovereign, or to 'a common source from which both parties claim, he must prove that he, or at least one of the grantors in his chain of title, had at some time been in possession of the premises before he can recover.

We therefore recommend that the judgment of the district court be reversed and the cause remanded for further proceedings.

Ames and Epperson, CO., concur.

By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed.