Dodge v. Yates

Paterson, J. Ejectment. The plaintiff bases his right of recovery upon the ground of prior possession. It was admitted that the land in controversy was public land, within the limits of the grant to the Atlantic and Pacific Railroad Company, and had been withdrawn from sale, pre-emption, or homestead entry.

The evidence introduced by plaintiff tended to show that H. 0. Dodge and George Dutton took possession of the land and other lands adjoining, and inclosed the the same in 1872-73 with a fence, the fence being made of a ditch and oak pickets set in the ground, fastened together at the top by nailing a pine strip or board thereon; that the fence inclosed the northeast quarter, the north half of the southwest quarter of section 5, and the southeast quarter of the northeast quarter, and the northeast quarter of the southeast quarter of section 6, township 23 south, range 8 east; that the fence when built was substantial and sufficient to turn stock, and cost about fifteen hundred dollars; that a house was built and a well was dug on the forty acres in section 6, within the common inclosure; that the barn was built upon the land in dispute, but a year later was removed to section 6 (no part of which is in controversy); that the claimants lived upon the land for nearly two years, and [253]plowed and cultivated a portion thereof; that in 1881 the land was leased to one Gillet for the term of one year; that after the making of the lease to Gillet, Dutton sold and conveyed the land to J. W. Dodge; and thereafter took charge of the place for Dodge, and employed one Nance, who plowed and sowed a portion of the land in dispute in the fall of 1882; that a portion of the land thus plowed was put in grain, and the balance of it reserved as summer-fallow; that in 1883 Nance was again engaged to plow and sow the land, and was about to go to work when he was forbidden to do so by the defendant, Yates, who had entered upon the land in August, 1883, put up a house, and dug a well thereon, these improvements being made upon the land, which had been summer-fallowed by the agent of the plaintiff; that the place was leased by plaintiff to one Pigott in 1883, who had cut the crop grown on the land for hay, and had his hogs feeding on the volunteer when the defendant, Yates, went into possession.

Neither the plaintiff nor any one in his employ has ever actually resided on the land. There is no question, however, that the land was originally inclosed with a substantial fence. This fence has since been considerably broken down, and parts of it removed.