McDivitt v. Bronson , 101 Neb. 437 ( 1917 )

Letton, J.

Defendant was the owner of two lots in the city of McCook, upon one of which her dwelling stood. She sold the other to plaintiff, who was intending to build. Plaintiff procured plans for tbe erection of a dwelling on tbe lot sbe purchased and let tbe contract for tbe erection of tbe bouse. Sbe bad tbe lot surveyed before beginning excavation for the foundation. It was then ascertained that a bay of defendant’s bouse projected over and into tbe lot plaintiff bad purchased. Tbe portion wbicb encroached was about 12 or 14 feet long and a little over 2 feet wide, exclusive of the eaves wbicb projected about 2% feet further. Plaintiff desired to use tbe strip upon wbicb tbe bouse encroached as a driveway. Sbe proposed to defendant that sbe (plaintiff) reconvey tbe lot and have a return of the purchase money. Plaintiff also negotiated with other parties with reference to tbe purchase of another lot. Sbe also offered to accept $250 and reconvey tbe five-foot strip. Tbe testimony tends to prove that defendant said sbe could not return tbe money and take tbe lot back because sbe bad sent tbe money away. Sbe declined to pay $250 for tbe strip. Plaintiff then proceeded with tbe construe-felon of her house. She attempted to purchase a five-foot strip on the other side of the lot for a driveway, but the owner asked |400 for it and she did not purchase. Defendant has retained the full amount of the purchase money, and has never tendered or offered to pay or return to plaintiff any money from the time of the purchase until the present time. Plaintiff brought this action in ejectment to recover possession of the five-foot strip. It Avas disclosed at the trial that plaintiff was in possession of all the strip except that occupied by the encroachment of the dwelling. The cause was tried without the intervention of a jury. The court found that the building and eaves projected 4 feet 5 inches into plaintiff’s lot, and that the plaintiff had sustained nominal damages of one cent, and rendered judgment of ouster. Defendant appeals.

The petition was the ordinary form in ejectment. The ansAver set up that the plaintiff knew of the encroachment Avhen she purchased the lot and agreed that it might remain there, but there is absolutely no proof to support these allegations. The only, assignment of error is that the judgment of the district court is contrary to laAV. Under this assignment two propositions are advanced; First, that it is essential to the action that plaintiff shoAV that she has been ousted by the defendant; second, that ejectment will not lie for a portion of a building if the building will ■be so destroyed as to lose its identity.

In Dale v. Hunneman, 12 Neb. 221, the question whether it was necessary to prove ouster before an action of ejectment could be maintained was considered, and it was held that while this Avas essential at common law it Avas unnecessary in a modern action under the Code, and that all that is necessary to entitle the plaintiff to the action is that he has a legal estate in the premises, is entitled to possession of the same, and that the defendant unlawfully keeps him out of possession. Bridenbaugh v. Bryant, 79 Neb. 329.

As to the second point, only a small portion of defendant’s dwelling projects into plaintiff’s lot, Avhich can be be cut off and tbe main building left. The rule is that, where one encroaches by a building upon the land of another, ejectment is the proper remedy. Butler v. Frontier Telephone Co., 186 N. Y. 486; Wachstein v. Christopher, 128 Ga. 229; Johnson v. Minnesota Tribune Co., 91 Minn. 476;* Cromwell v. Hughes, 144 Mich. 3. If it were not so, the adverse possession of the wrongdoer would ripen into a perfect title as against the owner. The finding of the court upon the facts in such an action is entitled to the same weight as the verdict of a jury. Defendant contends that plaintiff has mistaken her remedy, which is in equity. Plaintiff offered to rescind if defendant would return the money, but this offer was refused. She also offered to re-convey the strip to defendant for $250, which seems fair and reasonable, when the evidence shows that a like strip on the other side of the lot would have cost her $400. It would seem, therefore, that plaintiff has offered to do equity. Defendant has not pleaded an equitable defense, but has set up a legal defense which there is absolutely no evidence to sustain, and plaintiff is therefore entitled to judgment. It is unfortunate that this condition exists, but defendant seems to have brought it largely upon herself by her refusal to return the purchase money. It is to be hoped that even now an equitable adjustment can be made between these neighbors.

The judgment of the district court.is

Affirmed.