Bassett v. Hollenbeck

SANDERSON, J. This is an action to recover the value of certain sawlogs alleged to have been wrongfully cut and removed by the defendant from the land of the plaintiff. The judgment was for the plaintiff, and the defendant moved for a new trial, which was denied. The grounds of the motion were that the verdict of the jury was not sustained by the testimony, and that erroneous instructions were given and other instructions, not erroneous, were denied.

The only real contest seems to have been in relation to the plaintiff’s possession of the land, from which the sawlogs were cut. It appears that the plaintiff, in company with two [501]or three other persons — it is impossible to determine from the record how many — undertook to acquire possession for themselves and other persons — constituting all together a company of eight- — -of eight quarter sections of land situated on Carson river in Alpine county — that is to say, a quarter section for each member of the company. The business of the company seems to have been the cutting of wood and timber for the Virginia market in the state of Nevada, and they sought the land for the sake only of the wood and timber which was growing upon it. The plaintiff, and the other parties with him, for themselves and the other members of the company, caused a survey to be made, embracing eight quarter sections of land, showing the external boundaries of the whole tract, and also the dividing lines of each quarter section. According to the testimony of some of the witnesses, the lines of each quarter section were “well marked,” but how they were marked the testimony fails to show. Their first plan was to take up a quarter section for each member of the company under the Possessory Act of this state, and, doubtless, we are to understand by these “well marked” lines, such lines as would satisfy the calls of that statute — that is, lines so marked in the field as to be readily known and traced. They seem to have subsequently suspected, however, that the Possessory Act does not authorize the taking up of public lands by absentees for the purposes of cutting off the wood and timber, for the plaintiff makes no effort to found his possession upon that statute. They next seem to have undertaken to secure a common-law possession, and, to that end, to avail themselves of the Carson river as an inclosúre on the east, and certain ridges and bluffs, connected by lines of “felled trees” or “brush-fence,” on the other three sides. This inclosure, such as it was, followed the exterior lines of the whole tract of eight quarter sections — no attempt was made to inclose each or any of the quarter sections separately. Inside of this supposed inclosure a cabin and other improvements were made at a cost of about three hundred dollars, on the joint account of the company. None of the company resided upon the land, or any part of it, except when actually engaged in the business of cutting and rafting timber and wood, at which times they occupied the cabin and camps which had been erected for that purpose. The whole tract was treated as the common