Brown v. Roberts ( 1865 )

Opinion by

Lewis, O. J.,

full Bench concurring.

Ejectment to recover a piece of land located on American Elat, in the county of Storey. It appears from the evidence that the premises in dispute were a small portion of a ten acre tract located by one Orvis, in the year 1861. About the time of the location he built a small house upon the ground, placed stakes around the entire tract, dug out and walled up a spring thereon, and resided upon the premises from that time until the conveyance to the plaintiff. Immediately after the conveyance to him the plaintiff built a fence around the ten acres, and erected a dwelling house "and saloon within the inclosure. It appears that in July, A. D. 1863, and before the conveyance to plaintiff, the grantors of defendant erected a small toll-house on the premises, near the spring, and continued to occupy it for that purpose, apparently by the permission of Orvis, plaintiff’s grantor.

After the conveyance to plaintiff, and after he had built his house and saloon and inclosed the land, defendant laid claim to a portion of the ten acres about one hundred feet square, which included the spring and the toll-house, and fenced the same. This action is brought to recover the small lot of land thus inclosed by defendant. Yerdict for defendant; plaintiff appeals.

There, seems to have been some evidence before the jury from which it might be inferred that defendant and his grantors acquired a right or license from Orvis to build the toll-house in question on the premises, and the plaintiff seems to have purchased subject to that right; but there appears to be no testimony from which it would be inferred that anything more was granted than the bare right to build and occupy a toll-house. It is only necessary, therefore, to inquire whether the plaintiff had such a possession of the ten acre tract as is required by the law at the time the defendant began to inclose the lot in dispute. "Whether the plaintiff’s deed extended his possession to the boundaries described therein need not be determined in this action, for we think it is clearly shown that the plaintiff had acquired actual possession of the entire tract (except that actually occupied by the toll-house) by his inclosure and residence thereon before the defendant indicated his intention to claim anything more than the right to the toll-house. Prior to the inclosure by the plaintiff, the defendant seems never to have claimed any other right; he had done nothing — neither fenced, surveyed, driven stakes, nor in any manner manifested an intention to claim any land beyond that upon which his building stood.

Neither the character of the building nor the purpose for which it was erected is such as would lead any one to suppose that any land except that which was covered by it, and an access to the road if it is not directly on it, was necessary to its complete enjoyment!

At the time the plaintiff purchased there he had good reason to believe that defendant claimed nothing but the house, and perhaps the land which it covered. If it were admitted, then, that the plaintiff acquired no title whatever from his grantor, his own acts were amply sufficient to give him title against defendant, who had done nothing towards making a claim until after the plaintiff had perfected his.

The defendant may possibly be entitled to the land upon which the toll-house and any other building which was erected at tbe time of tbe plaintiff’s purchase stand, but be has not shown sufficient to enable him to retain more than that.

The judgment of the Court below is reversed and new trial ordered.