Bolton v. Stewart

By the Court, Currey, C. J. Ejectment for one hundred and sixty acres of land. The defendant’s entry and ouster of the plaintiff is alleged to have been on 3d of September, 1864. The defendant denied by answer that the plaintiff was then seized or possessed of the [617]premises, or any portion thereof, except a reservoir and water ditch within the boundaries of the premises ; and he denied further that he at any time ousted the plaintiff from the premises, or from any portion thereof, or that he unlawfully entered into the same. The defendant affirmatively answered in bar of the action the Statute of Limitations. Upon the issue so joined the cause was tried without a jury, and the Court found that the defendant entered upon the premises in November, 1859, under the belief that he had a right so to do, and that his entry was adverse to the plaintiff and was by the plaintiff so regarded, and that since such entry he had been in the quiet possession of the premises for more than five years next before the commencement of the action, and that neither the plaintiff, his ancestors, grantor or grantors, was or were at any time within five years next before the commencement of the action seized or possessed of the premises in controversy, and thereupon judgment was entered for the defendant. On motion for a new trial the plaintiff assigned divers errors. The Court granted the motion on the ground “ that the answer admits that the plaintiff is entitled to a portion of the premises, and the Court erred in finding that the plaintiff was not entitled to recover the land or any portion thereof.” The defendant has appealed from this order.

It is not necessary in passing upon the case to confine ourselves to the consideration of the particular ground on which the Judge of the Court made the order, because upon the transcript of the record before us we think the finding in favor of the defendant upon the Statute of Limitations was unwarranted by the uncontroverted evidence produced upon the trial by the parties respectively. In March, 1858, one Charles: H. McMillan entered upon the land, and in the course of that year built thereon a dwelling house, barn and corral. In February, 1859, while McMillan was in possession by n. tenant, he sold and conveyed the property to one Tevis„ Whose workmen and employ6s, among whom was the defendant, occupied the buildings on the premises during the year or [618]