1. Adverse possession: color of title. — I. The controversy between the parties involves the title to a small strip of land adjoining the right of way of the Burlington, Cedar Rapids and Northern railroad. The claim of the plaintiff is founded upon adverse possession of the land by himself and his grantor, one Kortson, for the period of more than ten years. The evidence in the case shows that in 1872 one
The court instructed the jury, in effect, that mere possession of the land for ten years or more would not be adverse, unless it was accompanied by color of title or claim of right; and that if plaintiff’s grantor, Kortson, purchased a 'tract of land in said forty acres to contain a good, big acre, more or less, and that he upon said purchase took possession of and inclosed the same, and from that time claimed to be the owner thereof, and that defendant or his grantor knew thereof, or acquiesced in, or at any time during said possession acknowledged,' Kortson’s right therein, then said Kortson’s possession, and the possession of plaintiff, would be under claim of right. It is plain, from the evidence in the case, that the plaintiff and his grantor held the strip of land in dispute under claim of right. Kortson had fully paid for it before he took possession, and he was put into possession by D. O. (running, the then owner. But counsel for appellant contends that there was no adverse possession of the strip of land in-controversy, because there was a material mistake as to the boundary 'lines, and reliance' is had upon the cases of Grube v. Wells, 34 Iowa, 148; Skinner v. Crawford, 54 Iowa, 119; and Mills v. Penny, 74 Iowa, 173. But we think there was no evidence in this case that the parties intended to limit the amount of land sold by D. C. (running to Kortson to an acre by strict measurement. It was to be an acre, more or less. It was. said by D. O.
II. It is claimed that the court did not correctly • instruct the jury as to the nature of adverse possession. It seems to us that there should be no complaint in this regard. The instructions are, in substance, those usually given in such cases, and we discover no error in them.
2. Trespass: cuttinh timber: treble damages: evidence. III. The court instructed the jury that, if the defendant wilfully cut the trees without right, the plaintiff was entitled to recover three times A the value thereof. It is claimed by counsel for appellant that there was no evidence authorizing the recovery of more than actual damages. The evidence shows that the defendant had acquiesced in the plaintiff’s claim of ownership; and the fact that the land is a narrow strip, of no real value to any one but the plaintiff, and that defendant, in order, as we suppose, to provoke this litigation, climbed three fences, and crossed the railroad, and cut the trees, and carried the wood which they made over the three fences, is, in our opinion, sufficient to warrant a recov ery of three times the value of the trees, as provided by section 3335 of the Code.
IV. Other objections are made to the rulings of the court pending the trial. In our view of the case, they do not demand consideration in an opinion. We are satisfied, upon an examination of them, that there is no well-grounded objection to any ruling of the court. The judgment of the district court is
Akfiemed.