Abernathie v. Con. Virginia M. Co.

16 Nev. 260

• Court: Nevada Supreme Court
• Decided: October 15, 1881
• Docket: No. 987
• Status: Published

Opinion

By the Court,

Belenap, J.:

The plaintiff having filed his protest in the United States Land Office against the issuance of a patent by the government to the defendant for the mining ground described in the complaint, thereafter brought this action to determine the right of possession thereto, in compliance with the requirements of the mining laws of congress. A trial in the district court resulted in a verdict for the defendant, and from the judgment thereupon entered and an order denying a motion for a new trial plaintiff has appealed. The-errors assigned will be considered in tbe order in which they have been presented.

Appellant, in the first place, insists that the evidence is insufficient to justify the verdict. To reach an understanding of this point it is necessary that some of the facts developed at the trial should be stated.

The action involves the right of possession to an undivided fifty feet of the south five hundred feet of the Consolidated Virginia mine on the Comstock lode. This five hundred feet was located by Sides, Baldwin, Belcher, and plaintiff in the month of June, 1859, and was known as the Sides ground or claim. Plaintiff’s theory is, that this claim originally embraced eight hundred feet; that afterits location a fear existed among its owners that at a threatened meeting of the miners of the district its length would be reduced to five hundred feet, and in order to frustrate such action and prevent the excess over five hundred feet from becoming subject to occupation by strangers, they conveyed it to some of their friends, and the claim thus segregated was thereafter known as the Best and Belcher claim; that the interests of plaintiff and of his co-locators thereby became reduced to one hundred and twenty-five feet each, and that these several interests have been reduced by conveyances to twenty-five feet each, which amount of ground they now own, excepting Sides, who sold his twenty-five feet to plaintiff’s grantor shortly before the commencement of this action.

The defendant contends that during the month of June, 1859, John D. Winters claimed to own three hundred feet of the ground embraced in the. Sides location, and that pending such adverse claim Winters sold an undivided half of his interest to one James O. Gregory. Thereupon Gregory proceeded to the premises for the purpose of representing his own and Winters’ interest. Shortly afterwards the conflicting claims were compromised by plaintiff and his associates agreeing with Gregory, for himself and Winters, that the ground should be divided into five interests, of one hundred feet each; that plaintiff and his associates should eacli be entitled to an undivided one hundred feet, and that the remaining undivided one hundred feet should be owned by Gregory and Winters. Defendant concedes the fact of the segregation of the Best and Belcher ground, as claimed by plaintiff.

The particulars in which the evidence is alleged to be insufficient is, that it nowhere appears that Gregory had authority from Winters to adjust the differences mentioned. If this compromise was made, and from the verdict we must assume that it was, it matters not to plaintiff whether Gregory was or was not authorized to make it. From the year 1859 until the year 1875, the locators of the Sides ground abided by the terms of the settlement made; under it the plaintiff and Sides, as well as Baldwin and Belcher, received without molestation the one hundred feet to which each was entitled, and severally made conveyances down to March, 1863, by which each of them alienated, in the aggregate, the significant interest of one hundred feet, to which he was entitled under the compromise.

Upwards of fifteen years has elapsed since each received the proceeds of such sales, and no one of them has ever been interrupted in the enjoyment thereof. Neither they nor their grantees have ever been molested in the possession of the respective interests received under the terms of the compromise, and in the year 1865 Winters conveyed to plaintiff’s grantee whatever interest he then had in the -Sides ground. These circumstances, connected with the further fact that the defendant at the trial maintained the validity of the compromise which it alone, as the successor in interest of Winters, could have attacked, rendered the question of Gregoryls authority immaterial to- the plaintiff’s case.

The second assignment of error consists in the giving of an instruction to the jury containing in part the following language: “To support the statement of any of the witnesses you can consider the probability of his evidence and the facts to which he testifies, and any facts or circumstances detailed which might tend to corroborate or sustain the statement of any witness; and you may also take into consideration any description or calls in the deeds introduced in evidence, and tlie manner, conduct, and action of the original owners in relation to tbe ground, in determining the question whether or not the plaintiff and his associates each owned more than one hundred feet in the Sides claim,” etc.

At the trial the defendant introduced in evidence the conveyances of the property made by the locators. These deeds showed that Belcher, after having conveyed fifty feet to Gregory, made a further conveyance of fifty feet to Bickelton, in which he recited the fact that the ground conveyed embraced his entire interest in the Sides claim. A similar recital is contained in the deed of Sides to A. E. Head for one hundred feet. The objection is to the effect that neither these recitals nor any deeds, save those made by plaintiff or Sides, could have affected plaintiff’s interest, and should not, therefore, have been considered by the jury. These deeds were not offered in evidence for the purpose of estopping the plaintiff in the assertion of his claim, but for the purpose of establishing defendant’s theory of the compromise and the interests taken by each of the locators under it. With this character of evidence defendant proved that each of the locators conveyed one hundred feet and no more of the Sides ground. This certainly was competent evidence of the extent of the ownership of the several locators, and tended to disprove plaintiff’s theory that they severally owned one hundred and twenty-five feet.

In this view the attention of the jury was properly directed in the quoted instruction to the calls and descriptions, and not to the recitals in the deeds. These recitals were, however, admissible for the purpose of rebutting the testimony of Sides and Belcher, each of whom had sworn that the original interests of the location was one hundred and twenty-five feet, and not one hundred feet, as claimed by defendant; and, although no estoppel was claimed, the recital in Sides’ deed was conclusive against plaintiff’s claim' to the twenty-five feet obtained through him.

The third exception consists in the admission in evidence of one of the books of the Sides eor-pany. The Sides com'.pany was an unincorporated association, composed of tbe owners of tbe claim, and organized for tlie purpose of providing means for its development. It bad officers, kept a record of its meetings, and a book called tbe assessment book. Tbis book lias not been made a part of tbe record, but is said by counsel to have contained “a list of all tbe owners of tbe Sides claim, with each of wbom was kept, upon a separate page, an account showing tbe amount per foot of each assessment levied, tbe number of feet assessed to sucb owner, tbe total amount of tbe assessments, and tbe payments made by bim.” It was sliown that tbe persons. claiming to be tbe owners of the Sides ground paid tlieir respective assessments under tbis system. That there never was any controversy concerning tbe proportionate amount which each member of tbe association was required to pay, and that assessments were collected on five hundred feet, tbe full number of feet in tbe claim. That plaintiff and those to wbom he bad conveyed, paid on one hundred feet and no more; that those deriving title from Sides paid on one hundred feet, and no more, and that Belcher and Baldwin, and those representing each of their interests, paid on a like number of feet, and that Gregory and Winters and their grantees did tbe same. In tbis manner tbe claim was worked for two years, and between forty thousand dollars and sixty thousand dollars expended without a suggestion of any inaccuracy or error in tbe assessment book.

It was also proven that tbis book was at all times open to tbe inspection of tbe members of tbe company at its office. In submitting' tbe book to tbe consideration of the jury they were instructed that if they believed plaintiff bad actual knowledge of its contents they could then consider tbe entries mentioned as admissions of tbe extent of bis ownership. Tbe objection was directed to tbe point that plaintiff could not be bound by tbe entries, unless be bad actual knowledge of them at tbe time. Tbis objection is disposed of by tbe terms of tbe instructions.

Tbe remaining objection arises upon instructions touching tbe application’of tbe statute of jimitations to the facts of this case. In tbe year 1863 an incorporation was created under tbe lay/s of this stale, called tbe Sides Silver Mining company. In tbe month of April of that year this incorporation entered into tbe exclusive possession of tbe Sides ground, claiming to be tbe owner of tbe entire claim under a deed from those who professed to own it, and continued such possession and claim openly and notoriously until some time in tbe month of May, 1868, when it conveyed tbe property to tbe defendant. This adverse possession of tbe Sides silver mining company, as well as that of its predecessors in interest, is pleaded in bar of plaintiff’s recovery.

From tbe fact that both parties claim title from a common source, plaintiff contends that the evidence of ouster was insufficient to set tbe statute in motion, in this, that no notice of an intention to bold adversely was given him. In cases where tbe relation of tenancy in common exists, tbe exclusive possession of one tenant in common is not necessarily inconsistent with the continuance of this relation* and tbe commencement of an adverse possession must be unequivocally manifested. It is not necessary, however, in order to set tbe statute in motion in favor of one tenant in common against bis co-tenant, that actual notice of an intention to bold adversely should be given. “To make a possession of tenant in common adverse as against tbe other,” says Angelí in bis treátise on tbe limitation of acr tions, “it is not necessary that notice should be given of tbe adverse intent; but tbe intent must be manifested by outward acts of an unequivocal kind.” (Sec. 429; Humbert v. Trinity Church, 24 Wend. 587; Lodge v. Patterson, 3 Watts, 74; Owen v. Morton, 24 Cal. 373; Weisinger v. Murphy, 2 Head (Tenn.), 674; Culler v. Motzer, 13 S. & R. 356; Bradstreet v. Huntington, 5 Pet. 440 ; 2 Greenl. on Ev., sec. 557.)

Tbe uncontradicted testimony in this case, howevei’, shows that tbe Sides corporation did not enter as tenant in common with tbe plaintiff, but as owner of tbe entire mining claim. It at no time acknowledged plaintiff’s title, but held under an avowed claim to tbe whole, and especially in exclusion of him and those under whom be claims, claiming the identical ground in controversy through conveyance from Winters and Gregory. Not claiming an undivided portion of the premises, nor admitting ownership in any wise in plaintiff or Sides, it can not be maintained that such possession was in support of the title claimed by plaintiff. Under the circumstances it was adverse from its inception. This principle was enforced under analogous facts by Judge Story in the case of Prescott v. Nevers, 4 Mason, 326. In that case the defendant claiming the whole estate entered under a deed purporting to convey all of it to him, although his title was good only to an undivided fourth interest in common with others. It was then said: “But he (defendant) made an actual entry into the whole, claiming the entirety, in fee and of right. His acts of ownership were such as amounted to a disseisin of the co-tenants; for he entered as sole owner; his possession was openly and notoriously adverse to them; and his acts went to a waste of the estate, and their utter, disseisin. I take the principle of law to be clear, that where a person enters into land under a claim of title thereto by a recorded deed, his entry and possession are referred to such title; and that he is deemed to have a seisin of the land co-extensive with the boundaries stated in his deed, where there is no open adverse possession of any part of the land so described, in any other person.”

The doctrine is discussed in Parker v. Proprietors etc., 3 Met. (Mass.) 100. In that case defendants acquired title through one Tyler, whose title was valid to an undivided portion of the estate only. - The court said: “It does not appear that Tyler had notice or knowledge of the defect in his title. But whether he had such knowledge or not, it is ven'’ clear that he wms in possession, claiming the entire title, and this undoubtedly was an adverse possession, which, being open and notorious, amounts to a disseisin. To constitute a disseisin, it is not necessary, at the present day, to prove the forcible expulsion of the owner, nor-is it necessary for a tenant in common to prove an actual ouster óf the co-tenant. If he enters, claiming the whole estate, the entry is adverse to the other tenants. The intention so to bold tbe estate must be manifest, as it is. in the present case, and tlie open and notorious possession of Tyler was constructive notice of a claim adverse to those heirs of Moors, who had not conveyed their title. If they had notice by the deeds to Hale, and by him to Tyler (which were duly recorded), they must have known that the latter never entered as tenant in common, but that he entered as purchaser of the entire estate.” •

The same principle was announced in Bogardus v. Trinity Church, 4 Paige Ch. 178, as is thus epitomized by the reporter: “Where one of several tenants in common conveys the entire premises held in common, and the grantee enters into possession under the conveyance, claiming title to the' whole premises, such possession is adverse to the co-tenants of the grantor, and at the expiration of the period of limitation, their right will be barred. See also Clymer’s Lessee v. Dawkins, 3 How. 674; Jackson v. Smith, 13 Johns. 407; La Frombois v. Jackson, 8 Cow. 589; Kittredge v. Locks and Canals, 17 Pick. 246.

The judgment and order are affirmed.