Kitts v. Austin

Gibson, C. This was an action to quiet title; the defendant set up her adverse claim, and judgment passed in her favor, from which, and an order denying a new trial, plaintiff appeals.

From the findings, which are fully sustained by the evidence, it appears that the land in controversy is a portion of the public domain, and is comprised of ten acres within a larger tract, to which the defendant acquired the right of possession by a deed from Wilson and wife in 1867, wrho were at the time, and prior thereto had been, in the exclusive possession of the whole tract. Under this deed the defendant immediately entered upon the exclusive possession of the land, built a house, and made other improvements upon a portion not included within the ten-acre tract. The latter was used in connection wtith her dwelling as a pasture for her cattle. In 1869 one of the predecessors of plaintiff entered upon the land, and inclosed the ten-acre tract with a fence, which was sufficient to exclude stock for three years • thereafter, during which time defendant was prevented from using the land; but thereafter, that is to say, from and including the year 1872 until the year 1886, the defendant used the land the same as before, except that such use was in connection with but hostile to that of the plaintiff and his predecessors. April 17, 1886, the defendant, who was duly qualified to do so, made and filed her original homestead entry upon certain public land, embracing the land upon which she resides and the ten acres in dispute, and received a certificate of [169]entry therefor, which she owns, and which has never been suspended, canceled, or revoked.

Neither the plaintiff nor any of his predecessors ever connected themselves with the government title to the tract in dispute, but the plaintiff, in 1886, after defendant had made her homestead entry, erected and has since maintained a substantial inclosure around the said tract.

At the trial considerable evidence was introduced by both parties, tending to prove that they and their respective predecessors had, as against each other, acquired the right to the possession of the land in dispute by adverse use. This evidence shows that neither the predecessors of plaintiff nor himself ever had the exclusive possession of the land against the defendant, except, perhaps, during three years from 1869 to 1871, both inclusive; and even during those years it seems a school was maintained in a school-house previously built upon the land by the permission of the defendant’s husband, since deceased, who was, at the time, one of the trustees of the school district that maintained the school. But the case seems to have turned in defendant’s favor upon the right she acquired as a homesteader.