This court, the court below, and counsel on both sides characterize this controversy as being an action in ejectment. The action is a possessory one to recover the possession of 80 acres of public land, but it is not and cannot be an action in ejectment under our practice. While it is usual to speak of the action to recover the possession of real property as an action of ejectment, yet technically and substantially there is no action of ejectment in Nevada. In Alford v. Dewin, 1 Nev. 207, decided in 1865, it is said, "We have in our practice no action of ejectment," and in the course of the opinion the court stated:
"Our action is one which may be brought merely to establish the right of possession as against defendant, or it may be one in which the ultimate right to the property is to be determined, therefore all the old common law rules are inapplicable."
Since we have in our practice no action of ejectment, I cannot say that plaintiffs were not prejudiced by the court's applying to their cause of action rules applicable *Page 110 in an action of ejectment. As for example, the court was of opinion that the plaintiffs had not established their cause of action, because they were not in the actual possession of the property, and ignored their proof tending to show right to possession which was the vital point to be determined. Whatever be the nature of the action, the plaintiffs' deed and title papers in evidence showed from whence they derived their right of possession and their ownership of the improvements and water right appurtenant to the land. Brown v. Killabrew, 21 Nev. 437,33 P. 865.
I shall not comment upon the defendant's evidence, but I apprehend that the defendant under the circumstances will have difficulty in curing the defect in his evidence pointed out in the opinion of Justice DUCKER for which a new trial is granted.