Eureka Mining & Smelting Co. v. Way

Beatty, J.,

dissenting:

I think that, in this case, there was testimony sufficient to entitle the plaintiff to the finding of a jury on the question of possession, and therefore I dissent from the opinion of the court. There was ample proof that the plaintiff and its grantors had been in the notorious occupany of a portion of the tract claimed a long time before the defendant entered. They had built roads and cabins and felled trees. The only question was, whether the boundary of their claim was sufficiently defined to be readily recognized and traced. I quite agree with the court that- upon this point the case made by the plaintiff was a weak one* and particularly that' its theory of a natural boundary on the west, and on portions of the north and south lines is untenable. But there were one or two witnesses whose testimony as to the artificial boundaries was sufficient in my opinion to make out a prima facie case. Putting the most favorable construction on their testimony and taking it for true, it.proved that the east line was marked by a continuous fence, the north line by a fence half the distance and by blazed trees for the balance. Prom the northwest corner the west line ivas marked nearly three-fourths of its length by blazed trees, • and from the southeast corner the south line was marked half way by a fence and for the rest by a few blazed trees near the southwest corner. There was something over a quarter of a mile of the south line, and a little less than a quarter of a mile on the west line, not marked in any way, but it was the opinion of several of the witnesses that no man could have gone upon the ground and failed to see what land was claimed. It is true they differed among themselves as to the exact boundaries, and a jury might readily have differed from them all, but I think nevertheless, the question should have been submitted to the jury. The language of this court in the case of Sharon v. Davidson, 4 Nev. 419, seems to be exactly in point: “There was *184evidence tending to prove a survey, a marking of lines by blazing and felling trees, building a mill and other houses, cutting timber and wood and other acts of appropriate dominion. Whether this was sufficient to establish plaintiff’s claim was for the jury, not the court, to decide,”

I think the judgment should be reversed.