nevada reports 1914-1915 (38 nev.).pdf

38 Nev. 1, 1 (1914)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA

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OCTOBER TERM, 1914____________

38 Nev. 1, 1 (1914) Dotta v. Hesson

[No. 2145]

In the Matter of EMILIO DOTTA, Petitioner, v. A. W. HESSON, E. E. CAINE, JOHNCAZIER, as the County Board of Education of the County of Elko, Respondents.

[143 Pac. 305]

1. StatutesRepeal by Implication. Repeals of statutes by implication are not favored.2. Schools and School DistrictsHigh-School BuildingIssuance of County

BondsStatutes. The act approved March 22, 1913 (Stats. 1913, c. 157), authorizing Elko County to issue bonds for, andto construct and equip, a high-school building in the town of Wells, was not repealed or amended by the actapproved March 25, 1913 (Stats. 1913, c. 244), relative to the construction of county high-schoolbuildings.

3. StatutesGeneral and Special LegislationHigh School. The act approved March 22, 1913 (Stats. 1913, c. 157), authorizing the county of Elko to issue bonds for,and to construct and equip, a high-school building in the town of Wells, is not a special law violative ofConst. art. 4, sec. 21, providing that where a general law can be made applicable, all laws shall be ofgeneral operation throughout the state.

Original Proceeding in prohibition by Emilio Dotta


against A. W. Hesson, and others, as County Board of Education of the County of Elko, Stateof Nevada. Dismissed.

Otto T. Williams, for Petitioner.

Milton M. Badt, for Respondents.

By the Court, Norcross, J.:

This is an original proceeding in prohibition. The relator, a citizen and taxpayer of ElkoCounty, seeks the order of this court prohibiting respondents, as the county board ofeducation of Elko County, from further proceedings punder that certain act of the legislatureentitled An act to authorize the board of county commissioners of the county of Elko, Stateof Nevada, to issue bonds to provide for the construction, equipment, and furnishing of ahigh-school building, in the town of Wells, Nevada, and authorizing the county board ofeducation of said county to construct, equip, and furnish said building, approved March 22,1913. (Stats. 1913, p. 240.) It is contended by counsel for relator that the act in question is a special law, and henceviolative of section 21 of article 4 of the state constitution; that the act was repealed by asubsequent act entitled An act to provide for bonding counties for building and equippingcounty high schools and dormitories or for either one of these purposes, and other mattersproperly connected therewith, approved March 25, 1913. (Stats. 1913, p. 368.) That if not so repealed, it was amended by the last mentioned act so as to require the twoacts to be read and construed together. Section 1 of the act of March 25, supra, provides: Whenever the county board ofeducation in any county having a county high school shall certify to the board of countycommissioners of such county that a new county high-school building or dormitory, or bothof these are needed, or that it is necessary to enlarge one or both of the buildings in use, andthat the cost of the same is such that !!!


it is expedient to raise the necessary money therefor by direct levy and that a bond issue forthe purpose is advisable, and shall furnish the board of county commissioners with a definitestatement of the amount of money needed therefor, said board of county commissioners ishereby authorized and directed to submit the question of bonding the county for the amount

named to the voters of the county at the next general election; or said board may, in itsdiscretion, order a special election if so requested by the county board of education. The purpose of the act last mentioned is fully shown by the provisions of section 1, quotedsupra. The act contains no provisions of express repeal. Section 10 provides: All acts orparts of acts in conflict with this act are hereby repealed. If there is any repeal of the prior act of March 22, it is by implication. [1] It is a well-established rule, repeatedly applied by this court, that repeals by implicationare not favored. In State v. LaGrave, 23 Nev. 379, 48 Pac. 194, this court said: The rule that courts are bound to uphold the prior law if it and a subsequent one maysubsist together, or if it be possible to reconcile the two together, is well settled. (McCool v.Smith, 1 Black, 470, 17 L. Ed. 218; Endlich on the Interpretation of Statutes, sec. 21; see thenumerous authorities cited by note 1.) Unless the latter statute is manifestly inconsistent withand repugnant to the former, both remain in force. (Industrial School Dist. v. Whitehead, 13N. J. Eq. 290, and cases cited.) A general statute without negative words will not repeal theparticular provisions of a former one unless the two acts are irreconcilably inconsistent.(State, ex rel. Dunkle, v. Beard, 21 Nev. 218, 29 Pac. 531.) The repeal, total or partial, ofstatutes by implication is not favored. As to this rule there can be no difference of opinion,and further authorities need not be cited. [2] The act of March 25, supra. appears to apply only to cases where a county high schoolis already established "

#! "!!


and a new county high school-building or dormitory is needed, or where it is necessary toenlarge one or both of such buildings. This, it seems to us, is the plain language of the statute.The general school law provides a means for the establishing of a county high school withoutspecial act of the legislature. (Rev. Laws, secs. 34133434.) The act of March 25, supra, isin its character supplementary to these general provisions or to the provisions of any specialact under which a county high school has been established. There is nothing in the said act ofMarch 25 which would justify this court in holding that it operates either to repeal or amendthe special act of March 22, 1913. [3] Since the passage of a special act by the legislature of 1895, providing for theestablishment of a county high school for Elko County (Stats. 1895, p. 59), a number ofsimilar acts have been passed authorizing the establishment of such schools in the counties ofChurchill (Stats. 1905, p. 144), Lyon (Stats. 1909, p. 145), Humboldt (Stats. 1913, p. 45),White Pine (Stats. 1914, p. 4), and possibly others, inclusive of the act in question. Thepassage of these several acts shows that the legislature and the people generally have regardedsuch acts as not violative of the constitution as it has been interpreted by numerous decisionsof this court. It would be unfortunate indeed if we were now bound to hold this legislationunconstitutional. Whatever room there may have been for argument when the question wasfirst presented as to whether this character of legislation was within the constitutionalinhibition, the question can no longer be regarded as an open one. The constitutionality of

similar legislation has been before the court repeatedly, and universally sustained. (State v.Lytton, 31 Nev. 67, 99 Pac. 855, and authorities therein cited; Quilici v. Strosnider, 34 Nev.9, 115 Pac. 177.) It is unnecessary to determine the question raised as to whether prohibition is anappropriate remedy, as the proceeding must in any event be dismissed. The demurrer to the petition is sustained, and the proceeding dismissed.

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38 Nev. 5, 5 (1914) State v. Harmon

[No. 2156]

STATE OF NEVADA, Ex Rel. RICHARD BUSTEED, Relator, v. HARLEY A. HARMON,as County Clerk of Clark County, Respondent.

[143 Pac. 1183]

1. ElectionsParty OfficesDe Facto OfficerWho Are. One purporting to act as a member of a county central committee of a political party, and who heldproxies of other members, is at least a de facto officer, although disqualified by Stats. 1913, c. 282, sec. 18,because the holder of an appointive public office; a de facto officer being one whose acts, though notthose of a lawful officer, the law upon principles of policy and justice will hold valid, because of thecircumstances under which he acts or for the benefit of third persons.

2. ProhibitionScope of RemedyCollateral Attack. Prohibition will not lie to restrain the county clerk from placing upon the official ballot the name of anominee for justice of the peace selected by the county central committee to fill the vacancy upon the deathof the original nominee, because the chairman of the committee, who held three proxies, was disqualifiedunder Stats. 1913, c. 282, sec. 18, being the holder of an appointive public office, for the chairman was atleast a de facto officer, and his right to the office cannot be tested by prohibition against another officer.

Original Proceeding in prohibition by the State, on the relation of Richard Busteed, againstHarley A. Harmon, as Clerk of the County of Clark, and another. Writ denied.

Alfred Chartz, for Petitioner.

Geo. B. Thatcher, Attorney-General, and E. T. Patrick, Deputy Attorney-General, forRespondent.

By the Court, McCarran, J.:

This is an original proceeding in prohibition. Petitioner seeks to prohibit the county clerkof Clark County from placing upon the official election ballot the name of H. W. Harkins asthe nominee of the Republican party for the office of justice of the peace of Las Vegas

township. The allegations of the petition are not denied. It is there declared that the originalnominee of the Republican party for the office of justice of the peace of Las Vegas townshipdied on the 16th day of September last, and that the $! %&%'! !


Republican county central committee, assuming to act under the provisions of the statute of1913, filled by appointment the vacancy thereby created. The statute in that respect provides: A vacancy occurring after the holding of any primary election shall be filled by the partycommittee of the city, county, city and county, district or state, as the case may be. (Stats.1913, p. 525.) [1] At the meeting of the Republican county central committee of Clark County, one RoyW. Martin was present, acting as chairman and taking part in the deliberations of the body,and holding and exercising three proxies. It is contended that the acts of the committee infilling the vacancy with the name of Harkins was void, in that by the provisions of our statuteof 1913 the said Martin was prohibited from being a member of the county central committee,inasmuch as he was the holder of an appointive public office, to wit, health officer of thecounty of Clark. Section 18 of chapter 282, Stats. 1913, provides: no holder of a publicposition other than an office filled by the voters shall be a delegate to a convention for theelection district that elects the officer or board under whom he directly or indirectly holdssuch position, nor shall be a member of a political committee for such district. (Stats. 1913,p. 482.) Without passing on the question as to whether the position held by Martin was one such asis contemplated by the inhibition of section 18, it is sufficient to say that the right of Martin tohold the place on the county committee cannot be attacked in this indirect proceeding inwhich he is not made a party. The acts of Martin, in so far as they went in voting to fill avacancy on the Republican ticket, were at least those of a member de facto of that committee.In the case of Walcott v. Wells, 21 Nev. 47, 24 Pac. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478,this court adopted a comprehensive definition of a de facto officer, that is: One whose acts, though not those of a lawful officer, "("!"")


the law, upon principles of policy and justice, will hold valid so far as they involve theinterests of the public and third persons, where the duties of the office were exercised: (1) Without a known appointment or election, but under such circumstances of reputationor acquiescence as were calculated to induce people, without inquiry, to submit to or invokehis action, supposing him to be the officer he assumed to be.

(2) Under color of a known and valid appointment or election, but where the officer hadfailed to conform to some requirement or condition, as to take an oath, give a bond, or thelike. (3) Under color of a known election or appointment, void because the officer was noteligible, or because there was a want of power in the electing or appointing body, or by reasonof some defect or irregularity in its exercise; such ineligibility, want of power, or defect beingunknown to the public. (4) Under color of an election or appointment by or pursuant to a public unconstitutionallaw, before the same is adjudged to be such. [2] Whatever might be considered as to the ineligibility of Martin's membership on thecounty committee of the Republican party, his right to membership on that committee cannot,in our judgment, be raised in a proceeding of this nature. His acts being, as we have alreadystated, the acts of a de facto officer, their validity is not properly a matter of judicial inquirywhere, as in this case, the proceedings are by way of prohibition against an entirely differentofficer. The writ of prohibition cannot assume the functions of a writ of quo warranto. Titleto office cannot, as a general rule, be tried by other than direct proceeding. From the foregoing, it follows that, inasmuch as the statute does not expressly declare theacts of a committeeman under such circumstances to be void, and finding nothing in theaction of the county clerk to warrant the "!""!


issuance of a writ of prohibition, it follows that the writ should be denied. It is so ordered.

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38 Nev. 8, 8 (1914) Quinn v. Small

[No. 2097]

JOHN QUINN, JAMES A. MAY, and F. J. PECK, Appellants, v. FRED L. SMALL,GEORGE W. LIKENS, CHARLES H. RULISON, and W. H. PEARSON and M. E.

CAFERETTA (Co-partners doing business as PEARSON & CAFERETTA), and JOHNDOE and RICHARD ROE, Respondents.

[143 Pac. 1053]

1. Adverse PossessionRecovery of Real Property. Where defendants and their predecessors had continued under a deed executed in 1887 in the sole, open,and notorious possession of a strip of ground by the side of a lot the boundary of which was in dispute, anaction by the holder of the record title thereto to recover its possession was barred.

2. EstoppelAcquiescence.

Where purchases by defendants and their predecessors were intended to include a strip of land and ahouse thereon, their continued, open, and notorious possession of the strip and the house was notice of theirclaim to plaintiffs or their predecessors subsequently obtaining their deeds to the lot; and in equity thesubsequent purchasers, with such notice, were estopped, by long acquiescence in the complete acts ofownership exercised by the prior purchasers, from recovering the strip.

Appeal from the Second Judicial District Court, Washoe County; John S. Orr, Judge. Action by John Quinn and others against Fred L. Small and others. Judgment fordefendants, and plaintiffs appeal. Affirmed.

Moore & Woodburn, for Appellants.

Brown & Belford and C. R. Lewers, for Respondents.

By the Court, Talbot, C. J.:

The plaintiffs, who are the appellants, brought this action to recover possession of a stripof ground 22.8 feet ""*'""$+%,--


wide, along the westerly side of lot 53 of the river front, according to the original survey ofthe town, now city, of Reno, and for $1,200 damages for detention and rents. The defendantspleaded estoppel and the statute of limitations. The appeal is from a judgment in their favor. Ever since the filing of the town plat in 1871, the plaintiffs and their grantors have held therecord title to lot 53, which according to late surveys covers the tract in dispute, and to lots 54to 86, inclusive, adjoining lot 53 to the eastward; and during that time the defendants andtheir predecessors in interest have held the record title to lots 48 to 52, inclusive, lying to thewest of the ground in controversy. The court found: That the board houses upon the contested premises had been placed there long prior to theyear 1887, and that prior to October, 1887, the exact date being unknown, D. H. Haskell, whohad an interest in and supervision over the property as hereinafter stated, constructed a boardfence along lot 53, about fourteen inches easterly from this house, which fence remainedthere until about two years prior to the commencement of this action. That in May, 1887, one C. S. Martin, the predecessor in interest of the defendants,received a deed to lots 49, 50, and 51 from one Anna R. Chambers. That on the 8th day of October, 1887, Martin purchased lots 48, 50, and 52 from CharlesCrocker; that at the time of such purchase By Martin, Haskell acted as the agent of Crocker inmaking the sale, and at the time of such sale was the owner of an undivided one-half interestin lots 53 to 80, inclusive, and pointed out the fence as being the boundary line between thepremises purchased by Martin and lot 53 and the other lots to the eastward, then owned by

Haskell and the Mannings. [1] That Martin, from the time that he entered into possession of the premises west of thefence on October 8, 1887, under his deed from Charles Crocker, until he sold to W. H.Pearson and others in May, 1906, continued in the sole, open and notorious possession of the "!!


premises in dispute, which have since been held by his grantors, including the defendants inthis action. That after Martin had gone into possession of the premises, and at a time more than tenyears prior to the commencement of this suit, it was agreed between him and A. H. Manningthat the fence was the boundary line between the property so owned by Martin and the lotsmentioned lying to the eastward, one-half of which were owned by the Mannings. That on March 29, 1894, Haskell sold and conveyed to Martin an undivided one-halfinterest of lots 53 to 86, and thereupon Martin became a cotenant with the Mannings in thoselots. That thereafter Martin continued in the sole possession of the land west of the fence,collected the rents from the house upon the tract in dispute, made repairs thereon, andotherwise treated the property as his own, and always asserted his ownership up to the fenceadversely to the Mannings and to the whole world. That the Mannings at all times acquiesced in the fence as the boundary line betweenMartin's sole property and the property in which Martin was a tenant in common with them. That in the year 1901, Martin, because of his agreement with the owners of the propertyeast of the fence that the fence was the boundary line of the lots purchased by him fromCrocker, and because of the long-continued acquiescence therein, and believing, because ofthe statements made to him by Haskell, and because of the agreement and acquiescence of theMannings, that this fence was the east boundary line of his property in the river front, whichconsisted in all of five 25-foot contiguous lots, by measuring a distance of 125 feet west fromthe fence, gave up and surrendered to one Ida Robbins all his right and title to about 22.8 feetin frontage of the land he would otherwise have been entitled to according to the official platof the lots as shown by the recent surveys; all of which he would not have done except for !!./$!!"" "


his reliance upon the fence being the true east boundary of his five lots; that the area thussurrendered to Ida Robbins was then, and is now, of greater value than the premises now in

dispute in this action. That Martin and his successors in interest, including the defendants, have improved andcared for the disputed premises at their own expense for more than twenty years prior to thebringing of this action. That on the 7th day of May, 1906, Martin, desiring to sell to defendants, Pearson andCaferetta and others all of the land lying west of the fence, then owned, claimed andpossessed by Martin, pointed out to the defendants, Pearson & Caferetta, the fence as the eastboundary line of the land owned wholly and exclusively by Martin and as the east boundaryline of lot 52, and thereupon Pearson & Caferetta, believing the statements of Martin andrelying upon the same, did purchase for a large consideration paid by them and theirassociates to Martin all the property of Martin lying west of the fence and east of the linefixed by Martin as the line between the property of Martin and that of Ida Robbins, andreceived a deed from Martin in which the premises now in dispute were described as being lot52 or a portion thereof. That Pearson & Caferetta then believed that the fence was the east boundary of theproperty so conveyed and described. That thereupon Martin delivered to Pearson & Caferetta, and they, for themselves and theircograntees, went into possession of all the premises west of the fence, with the knowledgeand acquiescence of the owners and claimants of the land east of the fence, and remained inpossession until they sold the premises to the appellants, Small, Likens, and Rulison. That Pearson & Caferetta, as well known by Martin, purchased the premises by reason oftheir situation and the improvements thereon, including the house now in dispute in thisaction, and in reliance upon the representation of Martin, and with the belief that by such"0,*" ""


purchase they were acquiring five full lots of 25 feet each, with the intent to claim all thepremises now in dispute lying west of the fence. That on or about the 1st day of October, 1906, the defendants Small, Likens, and Rulison,by various mesne conveyances, purchased for a large consideration paid by them, all of theproperty of Martin lying west of the fence and east of the line agreed upon and fixed byMartin as the line between the property of Martin and Ida Robbins. That the defendants and their grantors then believed that the fence was the east boundaryof the property so conveyed. That the defendants, Small, Likens, and Rulison, purchased the premises by reason of thesituation and improvements thereon, including the frame house now on the land in dispute,and with the belief that they were acquiring five full lots of 25 feet frontage each, and wentinto possession of all the premises west of the fence with the knowledge and acquiescence ofthe owners and grantees of the land east of the fence, and have ever remained in possession ofthe same. That more than fifteen years before the bringing of this action, the respective grantors of

the opposing parties hereto, being then in the possession and ownership of the lands andpremises on each side of the fence, did by express agreement fix and establish the fence as theeast boundary of lot 52, and as the line between the premises owned and claimed exclusivelyby Martin from and after his purchase in 1887 and the premises owned and claimed byHaskell and Martin at all times between the years 1887 and 1894, and that since saidboundary was so fixed the defendants and their grantors have held, occupied and claimed atall times the premises now in dispute west of the fence exclusively and adversely to all theworld, and have expended money in caring for and improving the property, in reliance uponsuch boundary, and have fixed the boundary between the land claimed ! /$!!!!


by them and Ida Robbins in reliance upon the boundary so established. That for more than twenty years prior to the bringing of this action, the fence has beentreated and considered by long acquiescence, understanding and agreement of all personsduring that time, concerned in the ownership, possession, use, and occupation and assessmentof the premises on either side thereof as the established and recognized east boundary of lot52, and as the established and recognized boundary between lots 52 and 53; that the samepersons, during all of that time, by common acquiescence and agreement, considered that theland in dispute immediately west of the fence was actually lot 52 and not lot 53, or any partthereof. That all tax returns, reports, and statements on the property were in fact made upon it as lot52, and it was so considered for all taxes and assessment purposes. That the defendants, Small, Likens, and Rulison, and their grantors, have been in peaceful,open, continuous, and notorious possession of lot 52 as the same is so established, by longunderstanding and acquiescence, and including the premises now in dispute, for more thanten years next prior to the bringing of this action, and during all of that time held the sameunder a claim of right and ownership adverse to the plaintiffs and their grantors and the wholeworld; that during all of that period the defendants and their grantors have paid all taxes andassessments levied against the property now in dispute and the improvements thereon. On behalf of appellants it is contended that C. S. Martin, laboring under a mistake as to theactual location of the true line between lots 52 and 53, believed the line to be at the fence andso informed his coowners in lots 52 and 86, inclusive, and That he never claimed, or intended to claim, as his individual property, any lands exceptthose described in his deeds to lots 48 to 52, inclusive; that the owners of lots 53 to 86,inclusive, never intended to surrender any *'!1",,2*' !."1

!!

""$3


part of lot 53 as described in their deeds, and that the possession of Martin and hispredecessors in interest to the west 22.8 feet of lot 53 arose and continued under suchmistaken belief; that it was not the intention of Martin or his successors to hold or occupy orclaim any land beyond the true line as fixed by the original map of the town, now city, ofReno. It is also the contention of appellants That the facts in this case bring it squarely within the rule laid down by the court in thecase of McDonald v. Fox, 20 Nev. 364.Different questions of fact are presented and there are elements of estoppel and limitation inthis case which do not appear in that one. The court properly found that the defendants andtheir grantors, including Martin, during the many years mentioned, held and possessed theland in controversy and to the west of the fence under claim of ownership against theappellants, their predecessors in interests, and all others. [2] The evidence indicates that the purchases made by the respondents and theirpredecessors were intended to include the tract in controversy and the house thereon. This isshown, not alone by the statements that the fence was the dividing line made and accepted atthe different times when sales were made of the property on each side of the fence, but fromthe fact that the building on the contested ground was considered as included in the salesmade by the respondent's predecessors in interest, and that the undisputed possession andcontrol of the building was in the possession of the respondents and their grantors from thebeginning, and for a period far exceeding the statute of limitations.In equity the appellants are as much estopped by long acquiescence of their grantors in thepurchase and sale and complete acts of ownership of the respondents and their grantors of thehouse on the premises as if they had acquiesced in the building of a new house on thecontested ground, as Martin had done with Ida Robbins. (Small v. Robbins, 33 Nev. 297.) "!0" " !


A person who is led into purchasing a house by the representations, acts, and longacquiescence of owners of land, sleeping upon their rights, is as much entitled to protection asthe man who, under similar circumstances, is induced to erect a building. The continued,open and notorious possession of the house by the respondents and their grantors was noticeof their claim to the disputed premises at the time appellants and their predecessors purchasedor secured the deeds to lot 53. In the McDonald-Fox case the disputed ground was the space between the two houses sixfeet apart, and the line ran near the middle of this space. The plaintiff relied solely upon theactual possession of the ground in controversy, and there was some dispute regarding her

claim of exclusive use and occupancy of the space, and as to whether the fence at the side hadbeen placed there before or after she purchased. There was no question regarding the right tothe valuable building upon the ground or regarding the sale of a house or improvements, orthe land, under mistaken representations as to the line, or otherwise, and no undisputedevidence of estoppel or of adverse possession such as relate to the building and ground incontroversy in this action.The present case is more nearly supported as to the statute of limitations by the one of Adamsv. Child, 28 Nev. 169, and the authorities there cited, and as to estoppel by the one of Small v.Robbins, 33 Nev. 279.

The judgment of the district court is affirmed.

On Petition for Rehearing

Per Curiam: Rehearing denied.

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38 Nev. 16, 16 (1914) Rehling v. Brainard

[No. 2116]

JOSEPH REHLING, Respondent, v. E. A. BRAINARD,Appellant.

[144 Pac. 167]

1. TrialReception of EvidenceRestriction to Special Purpose. In a trial, without a jury, of a husband's action for criminal conversation, the admission in evidence ofletters to plaintiff from his wife containing matters competent and matters incompetent was not error, wherethe court stated that the letters were admitted merely to contradict any inference that the husband and wifewere living together, and there was other and competent evidence relative to the adultery relied on as thebasis of the action.

2. Appeal and ErrorGround for ReversalAdmission of Evidence. Where incompetent evidence is admitted in a trial without a jury, a reversal is warranted only when therecord shows that the competent evidence was insufficient to support the findings, or that the improperevidence affected the result.

3. Appeal and ErrorHarmless ErrorAdmission of Evidence. A party cannot complain on appeal of the admission of incompetent evidence which inures to his benefit.

4. WitnessesCompetencyHusband and WifeConsent to Testify. Under Rev. Laws, sec. 5424, providing that a wife cannot testify for or against her husband without hisconsent, a wife was competent to testify for her husband in his action for criminal conversation, where thehusband and wife had each consented in open court that the other might testify to anything existing

between them having a bearing on the case.5. Husband and WifeAction for criminal ConversationSufficiency of Evidence.

Evidence in a husband's action for criminal conversation, tried without a jury, held to sustain a judgmentfor plaintiff.

6. Husband and WifeAction for Criminal Conversationissues. In a husband's action for criminal conversation, the issue is whether the wife has been guilty of adulterywithout his consent or connivance.

7. Husband and WifeCriminal ConversationDamages RecoverableMitigation. In a husband's action for criminal conversation, lack of consortium is an element of the damages, but thefact that the breaking up of the home or the destruction of the marital relation has been only partial, andthat there has been a reconciliation, may be considered in mitigation of damages.


8. Appeal and ErrorFindingsEvidence. The judgment in a case tried without a jury will not be disturbed on appeal, though the evidence isconflicting, where it is supported by any substantial evidence.

Appeal from the Second Judicial District Court, Washoe County; John S. Orr, Judge. Action by Joseph L. Rehling against E. A. Brainard. From a judgment for the plaintiff,defendant appeals. Affirmed.

Massey & Springmeyer, for Appellant.

Stoddard, Moore & Woodburn, for Respondent.


This is an action in damage for criminal conversation between appellant and the wife ofrespondent. Damage was prayed for in the sum of $10,000. The case was tried in the lowercourt without a jury. Judgment was rendered in favor of plaintiff in the sum of $2,000. Fromthe judgment and from the order denying a new trial the defendant appeals. The defense interposed by the pleadings denies the alleged wrongful act, and the damage,and by way of affirmative defense appellant alleged that respondent and his wife, prior to the19th day of June, 1911, conspired to manufacture evidence against the appellant, andconspired to wrongfully accuse appellant of the acts alleged in the complaint for the purposeof extorting money from him. There are a number of assignments of error asserted by appellant in the case. We willconsider only that assignment most seriously urged, and the only one which, in our judgment,demands serious consideration. [1] The respondent on redirect examination was fully interrogated by his attorneys relativeto the relationship existing between himself and wife subsequent to the 19th day of October,1911, the date on which he testified to having seen his wife in a compromising position withappellant. His testimony disclosed that some time %&4!

"! """ " !(


after the 19th day of October he left the state and went to California, and, having identifiedcertain letters received by him from his wife while he was in the State of California, the samewere admitted in evidence over the objection of appellant. The admission of these letters inevidence is the principal error relied upon by appellant for reversal in this case. The evidencetended to establish that these letters were written by Annie Rehling, wife of respondent, afterthe 19th of October, and were received by respondent, according to his testimony, while hewas in the State of California. The appellant, Brainard, had no knowledge of the sending andreceiving of the letters, nor of their contents. The letter of December 20 contains a completeconfession on the part of respondent's wife, and a full statement disclosing the illicit relationsexisting between Brainard and herself. The letter of December 10 is, in substance, a request for respondent to return to Reno, andamong other things contains these words: Well, all at once my eyes are open. Now I amready to talk and if you think of me as you said you did then, and seemed to when you left, Iam your friend in every sense of the word as you said you were mine, and want you to comehere now and hear what I have to say. These letters contained other statements indicating that the respondent had left the home,and that there was at least a temporary separation. It is the contention of appellant that these letters, purporting to have been written by thewife of respondent without the knowledge or assent of appellant, are objectionable under therule excluding hearsay testimony, and also under the rule excluding self-serving declaration.There is nothing in the record, in our judgment, that would relieve these letters of theirobjectionable features in so far as their contained admission and declarations of acts ofadultery are concerned. Each of the letters was subject to exclusion under all the rulesinvoked if they had been admitted for any other purposes than that expressly stated by thecourt when admitting them.


In reviewing this particular phase of the case, however, we must take into considerationthe circumstances under which the letters were admitted, the purpose for which they wereadmitted, and the force and effect apparently given to them by the trial judge on arriving athis decision. A review of this phase of the case necessarily demands a consideration of theentire field covered by the evidence produced at the trial. The wife of the respondent, the party from whom these letters purported to have emanated,was called as a witness by respondent, and her testimony given at the trial disclosed a chapterof her life which was replete with debauchery in which the appellant, according to her

testimony, was the star actor. Her story told upon the stand, both in direct and through thecourse of the most searching cross-examination, disclosed a series of acts of adulterycommitted with the appellant, not only in her own home, but in various lodging-houses in thecity of Reno prior to the 19th of October. She testified in detail as to the occurrences on theday of the 19th of October, the date on which it is alleged the respondent discovered appellantin a compromising position with her, and in her testimony she admits the act of adultery onthat date. Her testimony not only covers the ground covered by the inadmissible portions ofthe letters, but without referring to the letters goes much further, and much more in detail. Inher testimony she corroborates the statement made by respondent as to the acts and utterancesof the respective parties, to wit, herself, the appellant, and the respondent in the presence ofeach other on the 19th day of October. As we have already stated, it requires no citation of authorities and no critical analysis tofurther the conclusion that the letters in question were inadmissible to prove adulterous acts.Their incompetency was a matter manifest and apparent on their very face. With reference tothe admission of the letters the record discloses the purpose for which they were admitted,and the attitude of the court in admitting them. The court in admitting "" 5 !""!"!3!04!%&


them in evidence expressly stated the purpose for which the letters were admitted, i. e.,contradicting any inference that might be drawn that they were living together as husbandand wife, cohabiting together, subsequent to October 19. It has been held that, even in cases where a trial was conducted before a jury, theadmission of incompetent evidence contained in an instrument, part of the contents of whichwas competent, would not constitute reversible error where the court gave instruction to thejury directing them to disregard the incompetent portion, or where the court specificallyinstructed the jury as to the purpose for which the instrument or its contents should beconsidered by them. (Billings v. Albright, 66 App. Div. 239, 73 N. Y. Supp. 22; Ball v.Marquis, 122 Iowa, 665, 98 N. W. 496.) Our reference to this rule applicable to the admission of evidence of this character in thetrial of cases before a jury is made without conferring upon it either our approval ordisapproval. The established and recognized rules applicable to the admissibility of evidenceshould, in our judgment, be closely and carefully adhered to, with a view that nothing mayinject itself into the record excepting that which is properly admissible under the applicablerules. Strict adherence to these rules forms the surest avenue by which litigation may bespeedily determined and by which litigants may be saved interminable annoyance andexpense attendant upon reversals by courts of last resorts, and hardshipful retrials. In a case such as this where the trial is conducted before a court sitting without a jury, itmay, in our judgment, be properly presumed, unless the contrary appears, that the court inarriving at its conclusion considered only such evidence as was legally admissible. (Gernert

v. Griffin, 28 Okl. 733, 116 Pac. 439; Lee v. Railway Co., 67 Kan. 402, 73 Pac. 110, 63 L. R.A. 271.) As we have already stated, the incompetent evidence admitted by way of the letters inquestion was not the only evidence establishing the acts of adultery. Other and competentevidence was before the court by way of " "!""""


the testimony of the wife of respondent, and if the court deemed her testimony worthy ofbelief, he was warranted in giving it such weight and consideration as he saw fit. The writerof these letters, wife of the respondent, having taken the stand as a witness for respondent,testified as to all of the matters touched upon in the letters. She was subjected to a long andsearching cross-examination, going into every phase of the case. Her testimony in this respectwas not objectionable; it was competent, relevant, and material. [2] We think a rule sufficiently established and worthy of adherence is applicable here, i.e., where incompetent evidence is admitted in a trial of a cause by a court sitting without ajury, a reversal is only warranted when it is apparent from the record that the competentevidence was insufficient to support the judgment, or when it is affirmatively shown that theimproper evidence affected the result. (Miller v. Foster, 28 Okl. 731, 116 Pac. 438; Gernertv. Griffin, supra.) It cannot be assumed that the incompetent evidence, which was inseparable from thecompetent statements contained in the letters, affected the conclusion reached by the trialjudge when his decision in admitting the evidence excluded the incompetent portion fromconsideration. It must be assumed, in the absence of a showing to the contrary, that the trialjudge adhered to his position as stated when he admitted the letters in evidence. The rule thatinjury will be presumed where error is shown unless the contrary appears affirmatively cannotapply where, in a case like this, the incompetent matter, inseparably attached to competentmatter, was expressly referred to as not being admissible, or where the admissibility of theinstrument is limited to a specified purpose for which it is competent. If the testimony of thewife of the respondent given before the trial court, with the opportunity afforded the court forcareful scrutiny and observation of the witness, carried conviction to the mind of the court asto the truth of her assertions, it was sufficient in itself to support the finding.


This court has heretofore held that the admission of incompetent evidence in the trial of acause by the court without a jury should not of itself be sufficient to warrant a reversal of thejudgment, if an affirmance of the judgment is otherwise sustained by a preponderance ofcompetent evidence. (Fleeson v. Savage Silver M. Co., 3 Nev. 157; Robinson v. ImperialSilver M. Co., 5 Nev. 44.) Other courts have held to the same effect. (Smith v. Scott, 51 Wash.

330, 98 Pac. 763; Alexander v. Wellington, 44 Colo. 388, 98 Pac. 631.) The letters were admitted solely for the purpose of contradicting the inference thatrespondent was cohabiting with his wife subsequent to the date on which knowledge of heradultery was brought home to him. There were certain statements in the letters which mightbe considered as tending to disprove such inference. They were properly admissible for thispurpose, and under the rule already cited, it must be presumed that the court regarded theletters for no other purpose. (Willis v. Bernerd, 131 Eng. Rep. 439; Ball v. Marquis, 122Iowa, 665, 98 N. W. 496; Billings v. Albright, 66 App. Div. 239, 73 N. Y. Supp. 22.) [3] The letters introduced by the respondent, taken in connection with his testimony,establish a fact against his interest, viz, that the acts of appellant caused only a temporaryseparation of respondent from his wife, hence lessening the injury, and this, no doubt, was thebasis for the court's conclusion in fixing the damages. Of this the appellant cannot complain,inasmuch as the admission of the letters inured to his benefit. (Lamance v. Byrnes, 17 Nev.197, 30 Pac. 700.) [4] The wife of respondent was a competent witness to testify in his behalf. Section 482 ofthe civil practice act (Rev. Laws, sec. 5424) provides: A husband cannot be examined as a witness for or against his wife without her consent,nor a wife for or against her husband without his consent; nor can either, during theirmarriage or afterwards, be, without the consent of the other, examined as to anycommunication !


made by one to the other during marriage. But this exception shall not apply to a civil actionor proceeding by one against the other, nor to a criminal action or proceeding for a crimecommitted by one against the other. As we have already stated, the record discloses consent given by the respondent and by hiswife, respectively, in open court that the other might testify as a witness about any and allfacts and circumstances and mutual confidences which existed between them having abearing on the case. The error contended for in this respect not being seriously urged byappellant, we deem it sufficient to say that the action of the trial court in permitting thewitness Annie Rehling, wife of respondent, to testify was not an error under the statute cited.(Scheffler v. Robinson, 159 Mo. App. 527, 141 S. W. 485; Smith v. Meyers, 52 Neb. 70, 71N. W. 1006; Wigmore on Evidence, sec. 2241.) [5] As we view the evidence as disclosed by the record in this case, it was sufficient tosupport the judgment, if in the opinion of the trial court the testimony of the wife ofrespondent was worthy of belief, and we find nothing in the record to lead us to assume thecontrary. The plea of appellant asserting a conspiracy on the part of respondent and his wife,and the carrying out of the conspiracy on the 19th of October by respondent and wife ascoconspirators, is, in our judgment, inconsistent with the acts and conduct of appellanthimself subsequent to the 19th of October, inasmuch as it is disclosed from the record, by thetestimony of appellant, that on several occasions after the 19th of October, Annie Rehling, thewife of respondent, visited the place of business of appellant, and while there transacted

business with appellant, and received credit from appellant, and merchandise sold to her byappellant on credit, as he testifies, was delivered to her house, the place at which, accordingto his contention, he had been made the subject of a previously arranged conspiracy to extortmoney from him. Moreover, the debauching of respondent's wife, according to her owntestimony, was not confined to the date of October 19. She testifies to numerous acts ofadultery committed by herself and %&4!""!


appellant prior to the 19th of October, the date on which they were caught in the act byrespondent. [6-7] The issue in cases of this character is as to whether or not the appellant committedadultery with the wife of respondent without the consent or connivance of the latter. Thisbeing proven, the amount of damages in which the party sued must respond is a matterdepending upon such mitigating circumstances as may be shown to appear. The lack ofconsortium of the spouse is always an element upon which damages are estimated, and whenthis does not appear, or where, as in this case, there appears a reconciliation and only apartial, if any, breaking up of the home, or only a partial, if any, destruction of the maritalaffection or relation, these elements are properly considered in mitigation of damages. (Smithv. Meyers, supra; Billings v. Albright, supra; Scheffler v. Robinson, supra.) [8] The question as to whether or not the appellant was guilty of adultery with the wife ofrespondent was one to be determined by the trial court. There is a substantial conflict in theevidence. The testimony of respondent tends to establish the fact by circumstantial evidence,while the testimony of Annie Rehling was a direct and positive accusation, not alone as toone occurrence, but as to many. A complete denial of all of these statements is in thetestimony of respondent. There was evidence eminently substantial to support the finding asto adultery. Following the almost universal rule that where there is a substantial conflict in theevidence, an appellate court will not disturb the decision of the court below, and especially inview of the fact that the decision is supported by substantial evidence. Other minor errors are asserted by appellant, but we deem them unimportant ornonprejudicial. The judgment and order appealed from are sustained. It is so ordered.

____________

38 Nev. 25, 25 (1914) Howard v. Wright

[No. 1941]

M. J. HOWARD and JOHN PICETTI, Appellants, v. JOHN WRIGHT and JOHN WRIGHT, Jr., Respondents.

[143 Pac. 1184]

1. Adverse PossessionAcquisition of Easement by PrescriptionPermissive Use. The permissive use of one's premises, however long continued and whether the permission be express orimplied, confers no rights of continued enjoyment.

2. Adverse PossessionEstate by PrescriptionEssential ElementsAdverse User. To constitute the adverse user which is essential to the acquisition of an estate by prescription, it isessential that the possession be by actual, open, and notorious occupation, hostile to the title of the ownerof the servient estate, and that it be under an exclusive claim of right, and be continuous and uninterruptedfor five years prior to the commencement of the action.

3. EasementsAcquisition by PrescriptionSufficiency of EvidenceRight of Way. Evidence in an action to enjoin defendants from trespassing on plaintiffs' land held to show thatdefendants' use of the right of way claimed over such land was permissive, and hence could not ripen intoan easement by prescription.

4. EasementsRight of WayAcquisition by PrescriptionPresumption. Where a landowner opens and keeps open a road across his land for his own use, the fact that anadjoining owner makes use of the road under circumstances not interfering with the former's use creates nopresumption that the latter's use of the road is adverse so that it can ripen into an easement by prescription.

5. EasementsExistence of Adverse RightUse of Way by Owner. No adverse right can exist in a way used by the owner of the land over which it passes.

6. EasementsRight of WayLeaving of GateEffect as Evidence. The act of the owners of land in leaving a gate across a way of which they themselves made use tended torebut the presumption that the use of the way by an adjoining owner was adverse.

7. EasementsPrescriptionAdverse User of Right of WayRepairs. Where not only the adjoining owner, but the owner of the land over which a way was established, usedthe way, the act of the adjoining owner in constructing and maintaining bridges and in doing grading didnot make his use adverse, so that it could ripen into an easement by prescription.


8. EasementsRight of WayPresumption from Use. The presumption of a right arising from the unexplained use of a way across another's land for five yearsin negatived by proof that claimant used the way in common with others.

9. EasementsRight of WayUse in Common with Owner and Others. Where the owner of premises uses a way, its enjoyment and use by another in common with the publicgenerally must be regarded as being by permission and under an implied license, and not adverse, unlessthere be some decisive act on the part of that other to indicate a separate and exclusive use under claim ofright.

Appeal from the Second Judicial District Court, Washoe County; John S. Orr, Judge.

Action by M. J. Howard and another against John Wright and another. From judgment fordefendants and denial of new trial, plaintiffs appeal. Reversed and remanded.

Mack, Green, Brown & Heer, for Appellants.

W. A. Massey, for Respondents.


This is an appeal from a judgment and decree of the district court of the Second judicialdistrict, by which judgment and decree a right of way across the property of the plaintiffHoward was declared in favor of the defendant John Wright; the right of way being describedas a strip of ground theretofore traveled by the defendants and others, commencing at the firstgate south of the corral of respondent to the plaintiff Howard's ranch upon the east side of thatcertain highway leading from Reno, Nevada, to Carson City, Nevada, and extending easterlyfrom said gate to and across the lands of plaintiff, Mrs. M. J. Howard, to that certain gate inthe partition fence between the lands of Howard and Wright, which gate is situated near thebarn of said defendant John Wright, said right of way being twenty feet in width and astheretofore traveled by the said defendants and others. In addition to this a perpetualinjunction was issued against the plaintiff Howard whereby the plaintiff was ( !"""!! !


enjoined from closing up, obstructing, or in any way interfering with the right of waydescribed, so as to prevent a free and undisturbed use of the same by the defendant Wright. The decree rendered by the trial court in this case grew out of an action wherein theplaintiff Howard and her lessee sought to secure a perpetual injunction against the defendantWright, restraining the defendant from trespass or entry upon the lands of plaintiff. Atemporary injunction was granted plaintiff upon the filing of her complaint. Together with theinjunctive relief, plaintiff sought to recover damages against the defendant in the sum of $300for trespass alleged to have been committed by the defendant Wright and his servants uponthe premises of plaintiff. The premises on which the trespass is alleged to have beencommitted is a field owned by the plaintiff Howard, bounded on the west by the Virginiaroad, a public highway leading from the city of Reno to Virginia City, and bounded on theeast by a fence which separates the field from the premises and property of the respondentsWright. It is the contention of respondents that a right of way through and across the field hasbeen acquired by them by prescription, inasmuch as they have for many years past and in fact,as the record discloses, since the date of respondent's first occupancy of their premises, to wit,on or about 1863, passed across and over the field in question without asking for or receivingpermission from the owners of the field. It is not the contention of the respondents that this is the only avenue by which they cangain access to their premises. In fact, the record shows that another road exists which is theusually traveled road, but which makes the distance somewhat longer in going to or coming

from the city of Reno. It is disclosed by the record that the appellant Howard purchased thepremises in question from Gregory and Dresler, and that she, together with her husband, tookup occupancy on the place April 10, 1867, and in her testimony, given at the trial, shenowhere ""!"


denies that the respondent Wright and his family, as well as others who had business at theWright ranch, passed across her field in an easterly and westerly direction, first entering thefield at the gate immediately in front of her house, passing across the field to the gate in thevicinity of the Wright residence. She nowhere contends that permission was ever asked by therespondent or any of his family to pass through the original gate and across this field, nordoes she contend, in her testimony, that she ever questioned the right of respondents to passacross the premises. It appears from the record that the way in question was one marked byseveral bridges crossing artificial and natural waterways, running through the fields. Itappears that there was no well-defined track or road, other than that which was marked bythese bridges, and at one place in the field some work had been done in the way of grading.This work was done by the respondents Wright or those under them. The testimony of therespondent Wright, as well as that of his son, discloses that in the year 1890 he asked for andobtained permission from appellant to change the position of the gate entering into the fieldfrom the Virginia road. This fact is also testified to by the appellant. Pursuant to permissionthus granted, the entrance formerly used by the Wrights on the occasions when they crossedthe field was abandoned by them, and a gate was put in by respondent at a point about fifteenrods further south. This gate was used as a place of entrance by the respondent and themembers of his family from the year 1890 up to a short time before the commencement ofthis case, at which latter date the respondents' lessee fastened the gate with a chain and lockedthe same. From the record it is disclosed that many others, in addition to the respondent andhis family, entered the Howard field and crossed the same, some going to the Wright ranchand others to adjoining ranches, and still others to the mountain ranges lying to the eastward. One principal question is presented for determination in this case, viz, Was the right tocross the Howard field !! 6


originally obtained by permission, either implied or expressed? In considering this question inconnection with the facts presented a secondary question is involved. If the right to cross theHoward field was not originally acquired by permission, either expressed or implied, was itacquired adversely to the appellants or their predecessors in interest? The first question is onedepending upon the facts presented; the second depends largely upon the acts and conduct of

the respondents. [1] At the outset it must be observed that it is a rule of law almost universally recognizedthat a permissive use to the premises of another for any length of time confers no rights tocontinued enjoyment. The owner may prohibit the use or may discontinue it altogether at hispleasure as long as it is merely permissive. (Roe v. Walsh, 76 Wash. 148, 135 Pac. 1031, 136Pac. 1146; Nellis v. Countryman, 138 N. Y. Supp. 246; Really v. Really, 245 Mo. 417, 151 S.W. 415; 14 Cyc. 1151.) [2] If the right is one adverse to the owner of the servient estate, then it must appear thatthe elements requisite to make out an adverse user are present. These elements are:FirstThe possession must be by actual occupation open and notorious, not clandestine.SecondIt must be hostile to the title of the owner of the servient estate. ThirdIt must beheld under a claim of title, exclusive of any other right as one's own. FourthIt must becontinuous and uninterrupted for a period of five years prior to the commencement of theaction. (Anthony v. Kennard Bldg. Co., 188 Mo. 704, 87 S. W. 921.) In order to perfect an easement by occupancy for five years, the enjoyment must beadverse, continuous, open, and peaceable. Nothing less than an adverse user, under claim of legal right, will perfect an easement byoccupancy for the statutory time. A use acquired merely by consent, permission, orindulgence of the owner of the servient estate can never ripen into a prescriptive right, unlessthe user of the dominant estate expressly abandons and !"


denies his right under license or permission, and openly declares his right to be adverse to theowner of the servient estate. (Hurt v. Adams, 86 Mo. App. 73.)In the latter case, his adverse right must be openly declared and continuously pursued for theperiod prescribed by the statute in which a prescriptive right may be acquired. (Cobb v.Davenport, 32 N. J. Law, 369; Swango v. Greene, 155 Ky. 227, 159 S. W. 692.) The rule that precludes a permissive use from ripening into a right to continued enjoyment,where the permission, consent, or license is expressly given is no less effective where thepermission or license may be implied. (Thomas v. England, 71 Cal. 456, 12 Pac. 491.) [3] The facts as presented by the evidence in this case disclose two significant incidentswhen viewed in the light of the foregoing observations as to the law. The one is the user bythe respondents of the original gate at the west terminus of the claimed way. The other, theuser of the gate at the west terminus after the change made by request of respondents in 1890. It is admitted by all parties in the record, familiar with the past history of the Howard field,that the premises were originally taken up and at least partially fenced by Gregory andDresler, on or about the year 1862. The farm house constructed by Gregory and Dresler wasin approximately the same position as that now occupied by the appellants, being on the westside of the Virginia road and opposite to the field over which the right of way is claimed. Eastof the Howard field was a tract of land located by the respondent Wright, and other tracts in

the same vicinity were taken up by Clow, Smith, Savage, and others, who on numerousoccasions, according to the testimony of the respondent Wright, passed through the Howardfield by way of the original gates mentioned. It is disclosed by the testimony of the respondent John Wright, Sr., that the Howard fieldin question was fenced and inclosed prior to the time at which Howard obtained """78.!0 !" 7


possession thereof, and while it was under the control and ownership of Gregory and Dresler;and, bearing upon the question of implied consent given by the original owners of the field tothe respondent Wright, the testimony of Gregory is significant. He says that he came to theplace to live for the first time in the spring of 1860, and lived there until about 1867; thatabout that time he sold the place to Howard and Goodwin. He testifies that soon after goingto the place, and probably in the year 62 or 63, he inclosed, or at least partially inclosed, thefield in question with a fence, and, referring to the original gate leading into the west side ofthe field from the Virginia road opposite the Howard house, he testified: Q. Now did you construct any gate leading from your place into the field or from the roadinto the field? A. Yes, sir; we had a gate. Q. Whereabouts was that gate built? A. Well, the gate, I do not recollect exactly, butsomewheres, somewheres opposite the house where I lived. Q. Just about opposite the house? A. Somewheres in there. Q. Did it lead into a corral orstockyard or field? A. Well, of course, the gate went into the meadow, into the field. Q. Can you state about what time that gate was built by you? A. Well, I don't know. Q. Was it soon after you went there, or was it before, or how long a time after you wentthere? A. Well, it was some time, I think, after I first went there, probably 62 or 63somewhere. * * * Q. Now, then, for what purpose did you build this gate that was opposite your house thereleading into your field? A. What purpose? Q. Yes. What was the object in constructing the gate there? A. Well, I wanted the gate formy own use, a gate into my field. Q. Now, did any of your neighbors use that gate at any time to your knowledge? A. Yes.


Q. Who were they? A. Well, there was Mr. Wright, he used it to go through there, andMr. Clow and Mr. Smith used to live there, and others. Q. Now, did you make any objection to their using the gate? A. No, I never made anyobjection while I was there. Q. Why not? A. I couldn't say exactly, I only just let them go through as neighbors,

something that way. Q. The relations between you and Mr. Wright were friendly or unfriendly; how were therelations between you and Mr. Wright? A. Well, we and Mr. Wright was always on goodterms, never had any trouble with him. Q. Did Mr Wright ever pay you anything for the privilege of using this gate or this roadthat the gate led into? A. No, sir. The gate here referred to was originally the gate at the west terminus of the claimed rightof way. Nothing appears from the record in this case that would indicate that the respondents, orany person other than Gregory, either demanded the placing of the gate in the position inwhich it was originally placed by Gregory or had anything to do with its construction ormaintenance. As disclosed by the record, the original gate, from the Virginia road into theHoward field, was used as a place of entrance into that field by Gregory, the original owner,and also by the Howards. It was also used by other parties whose convenience it suited to takea near cut to the Wright ranch, or other places in that vicinity. [4] It is our judgment that the law in this respect is well established that where the ownerof land opens a road across it for his own use, and keeps it open for his own use, the fact thathe sees his neighbor, or other parties, also making use of it under circumstances that do nottend to injure the road or interfere with his own use of it, will not justify the inference that heis yielding to his express claim of right, or that his neighbor is asserting any right. (Anthony v.Kennard Bldg. Co., 188 Mo. 704, 87 S. W. 921; Harkness, et al., v. Woodmansee, 7 Utah,227, 26 Pac. 291.)


The circumstances surrounding the user of the gate testified to by Gregory as being theoriginal opening through which the respondent Wright passed, indicating, as they do, to ourmind that such user was as consistent with the idea of permission as they were with adverseclaim, the burden was with respondent to establish his adverse claim by something more thanthe mere passage over the land for the time testified to, even with the knowledge of theappellants and their predecessor. As was stated in the case of Anthony v. Bldg. Co., supra,mere use of a passage over another's land for a long time with his knowledge is notnecessarily an adverse use. The circumstances may be such as to authorize an inference thatthe use is adverse, but they may also be such as to intimate that the use was by permission.The use necessary to create or establish an easement by prescription, as we have alreadystated, must be adverse and under claim of right. It is true that these elements may be inferredfrom the circumstances, but they cannot be inferred, unless the circumstances justify theinference. We find nothing in the record with reference to the placing of the gate by Gregory,at the place which afterward became the west terminus of the claimed right of way, fromwhich act it could be inferred that it was placed there by the witness in recognition of theright of others to pass through, or that respondents in passing through the gate did so in anyother spirit than that of the recognition of a neighborly courtesy. The record discloses that the appellants, as well as their predecessor, Gregory, knew that

the respondent, Wright, and the members of his family, as well as others, passed through thegate and across the field to the Wright ranch, but this fact does not even raise a presumptionthat the act of the respondents in passing across the field was hostile or under claim of right.(Tarpey v. Veith, 22 Cal. App. 289, 134 Pac. 367.) A right of way by prescription can only be acquired by a user which is neither expresslynor impliedly licensed or permissive. It must be adverse and hostile to the " ! """


owner of the servient estate, and must be under a claim of right so expressed as to charge theowner of the servient estate with knowledge thereof. (Tarpey v. Veith, supra; Bowman v. Lee,48 Mo. 335; Heckescher v. Cooper, 203 Mo. 278, 101 S. W. 658; Clay v. Penzel, 79 Ark. 5,94 S. W. 705.) User alone, says the Supreme Court of California in the very recent case of Tarpey v.Veith, supra, is not sufficient to establish a prescriptive right of way over lands of another.Such user must be accompanied by a claim of right communicated to the owner of the land,or it must be shown that the user was so continuous and so openly and notoriously adverse tothe owner as to create a presumptive knowledge in the owner that the person using the landwas doing so under a claim of right. (Jones on Easements, sec. 266.) In the case of Tarpey v. Veith, supra, the Supreme Court of California quoted approvinglyfrom the case of Dexter v. Street, 117 Ill. 532, 6 N. E. 506, wherein that court held: The usemust have been enjoyed under such circumstances as will indicate that it has been claimed asa right, and has not been regarded by the parties merely as a privilege revocable at thepleasure of the owner of the soil. There is nothing in this case, so far as the record discloses, that even indicates an act onthe part of the respondent, or the members of his family, from which act a claim of rightmight have been inferred by appellants. As disclosed by the testimony of both appellants andrespondents, and by the testimony of the members of their respective families, a most cordialand neighborly feeling existed from the early pioneer days until the commencement of thissuit. The neighborly feeling was reciprocal. Friendly visits appear to have taken placebetween the members of the respective families. In fact, as appears from the record, the entirecommunity, during the time at which others, namely, Barney Clow, Hank Smith, GlennSavage, and Grove Holcomb, resided there, together with appellants and respondents, appearsto have ! !"!"!


been one of most reciprocal neighborly spirit, in which the respective parties passed through

the inclosures and over the fields of their neighbors on occasions when it suited their pleasureof convenience, either for interchange of courtesies, or on business. [5] The road in question across the Howard field, and the gates at both termini were usedmore or less generally by those living in the vicinity, and were also used by the appellantHoward on occasions when she saw fit to visit respondents. The recognized rule of law is thatwhere the owner of the land over which the way is claimed also uses such way, no adverseright can exist. (Wood v. Reed, 30 N. Y. Supp. 112; Reid v. Garnett, 101 Va. 47, 43 S. E.182; Williams v. Kuykendall, 151 S. W. 629.) [6] The gate, leading from the Howard field into the Virginia road, was, according to therecord, placed there by Gregory, one of the predecessors of the appellant Howard, and there isnothing in the record, as we find it, that would indicate that the placing of the gate at thatparticular point was for any other purpose than that testified to by Gregory, namely, for hisown use in entering the field. This gate was at the west terminus of what is declared by therespondents to be their right of way, but, as we view it, no way would ever have existedacross the Howard field at that particular place had it not been for the placing of the gate thereby Gregory. Gregory placed the gate there and Gregory and his successors in interest, theappellants herein, maintained the gate at that place, and, so far as we can determine from therecord, the gate is still maintained at that place by appellants. In our judgment, the fact that the appellants, or their predecessors, construed andmaintained a gate on the west line of their field in no wise indicates a surrender oracquiescence on their part. On the contrary, all the facts surrounding the placing of the gateand its maintenance evidence a different attitude. (Scheller v. Pierce County, 55 Wash. 298,104 Pac 277; Schulenbarger v. Johnstone, 64 Wash. 202, 116 Pac. 843, 35 L. R. A. n. s. 941.)


In the case last cited, the Supreme Court of Washington said: If there are any acts whichindicate the intention of the owner of the soil to reserve the control to himself, like theerection of a fence and gate, it cannot be said that the intention is established; and the roaddoes not become a highway however long it may have been used, even beyond the period oftwenty years. Such permissive use, in the absence of any intention to dedicate, is but a merelicense, which may be revoked at the pleasure of the owner. A general rule, gathered from the decision of courts passing upon this subject, is to theeffect that the leaving of gates or bars across a way will operate to rebut the presumption ofadverse user rather than otherwise. Some time after the appellants came into possession of the field in question, a barnyardcorral was constructed, and the gate mentioned in the testimony of Gregory became the westentrance to that corral. This corral and the gate in question were used by the appellants for thepurposes for which such inclosures are constructed. The respondents, on occasions when usewas made of the way across the Howard field, passed through this barnyard, in order to getout onto the Virginia road. Others who had occasion to visit the Wright ranch also passedthrough this gate and barnyard. The principal user of the gate was appellant Howard, usingthe barnyard as she did for all general purposes. In our judgment the gate originally placed on

the west line of the Howard field by Gregory, the original owner, and maintained there byGregory and his successors in interest, the appellants herein, was as much a part of theclaimed right of way as any other designated place in the field, and unless this passageway,through the west line fence of the Howard field, was used by respondents openly, notoriously,and under claim of right adverse to the appellants, we are unable to see how a prescriptiveright to the use of this passageway could be maintained by respondent. In our judgment, thevery fact that this "!"!


gate was used by appellants as an entrance to their own barnyard precludes the idea of aprescriptive right in favor of respondents. This is especially true when viewed in the light ofthe rule of law that no right of way through the premises of another can be acquired by user ofa way maintained by the owner of the premises for his own convenience. (Wood v. Reed,supra; Reid v. Garnett, supra.) In the light of our observations heretofore made the conclusion necessarily follows that theuse of the original gate on the west line of the Howard field by the respondents was a useacquired by implied permission, and, there being no evidence in the record which would leadus to believe that the user was ever declared by respondents to be a right, or that any suchcontention was ever brought to the knowledge of appellants, or could reasonably have beeninferred by appellants, such user could not and did not ripen into a prescriptive right. According to the testimony of the respondents, as well as the testimony of appellants, therespondent, about the year 1890, asked permission of appellant Howard, and obtained herpermission, to make a new gateway some fifteen rods south of the original gateway. Therecord discloses that this new gateway has been used from time to time by respondents, andthat since the change respondents have not used the original gateway. It being our conclusionthat the original gateway was used by respondents under implied permission, and that no rightof way was acquired thereby, certainly their rights could not be strengthened by thepermission admittedly given to the use of the new gateway, and the authorities heretoforecited abundantly support our contention in this respect. [7] The fact that the respondents constructed and maintained some bridges across naturaland artificial waterways in the Howard field along the general course of the way contendedfor, and did some grading and used the way more frequently than others, are not such acts asnecessarily indicate adverse claim of right, when "


considered in connection with all the other facts and circumstances in the case. (Reid v.Garnett, supra; Long v. Mayberry, 96 Tenn. 378, 36 S. W. 1040.) It has been held by this court in the case of Chollar-Potosi Mining Co. v. Kennedy, 3 Nev.

361, 93 Am. Dec. 409, that a person assuming to have a right of way and continuouslyexercising that right for a period of five years, without consulting the owner of the soil orasking his permission, must be considered as holding adversely. This presumption, however,does not prevail where the circumstances are such as to show that the user was by permission.(Bruner Granitoid Co. v. Glencoe Co., 169 Mo. App. 295, 152 S. W. 601.) [8-9] Moreover, the presumption of a right arising from the unexplained use of a way overthe land of another for a period of five years in negatived by proof showing that the claimantused the way in question in common with others. Where the owner of premises uses a way,its enjoyment and use by another in common with the public generally must be regarded asbeing by permission and under an implied license, and not adverse, unless there be somedecisive act on the part of that other to indicate a separate and exclusive use under claim ofright. (Reid v. Garnett, supra.) The entire record, in this case relied upon by respondents to establish a right of waythrough the premises of appellant, typifies the general conditions and the general attitude ofthe pioneer of this section. To our mind it shows nothing more than the usual neighborlyaccommodation where, for convenience, one neighbor uses the premises of another and, inthe spirit of hospitality, the other either welcomes him or remains silent. To apply to theseconditions either adverse intent on the part of the user, or acquiescence to the extent ofrecognizing a right on the part of the one whose premises are used, would be to put a penaltyupon generosity and destroy the neighborly spirit wholesome to such communities. It follows that the judgment of the trial court and the " !


order denying a new trial must be reversed and the case remanded. It is so ordered.

____________

38 Nev. 39, 39 (1914) State v. Boerlin.

[No. 2158]

STATE OF NEVADA, Ex Rel. NEVADA TAX COMMISSION, Relator, v. HENRYBOERLIN, Et Al., As County Commissioners of Esmeralda County, Respondents.

[144 Pac. 738]

1. TaxationLevyStatutesPower of Tax Commission. Stats. 1913, c. 134, creating the Nevada Tax Commission, and empowering it to exercise generalsupervision and control over the entire revenue system of the state, with special enumerated powers,including the power to advise and direct assessors, sheriffs, and county boards of equalization, and alsoproviding that the enumeration of the special powers shall not exclude the commissioners of any needful

and proper power, does not empower the commission to order a board of county commissioners to reduceits rate of county taxation after the commission has increased the valuation.

2. StatutesConstructionIntention of Legislature. The intention of the legislature, when not in conflict with the constitution, is to govern in the constructionof statutes.

3. StatutesImplied RepealSpecial Statute. In the absence of a clear showing, the repeal or modification of a statute is not presumed, and, when thereis a general and special statutory provision relating to the same subject, the special provision will control.

4. Constitutional LawDetermination of Constitutional QuestionsNecessity. The court does not determine constitutional questions, when such determination is not necessary for thedecision of the case.

Original Proceeding. Petition for mandamus by the State of Nevada, upon the relation of J.F. Shaughnessy and others, constituting the Nevada Tax Commission, against Henry Boerlinand others, as the Board of County Commissioners of Esmeralda County. Petition denied.

Geo. B. Thatcher, Attorney-General, for Petitioners.

M. A. Diskin, District Attorney, for Respondents.


By the Court, Talbot, C. J.:

This is an application by petitioners, as Nevada Tax Commission, for a writ of mandamuscommanding respondents, Boerlin, Cable, and O'Keefe, as county commissioners, to reducethe tax rate of Esmeralda County from $1.55 to $1.16 on each $100 of assessed valuation, asordered by petitioners, and commanding the respondent Johnson, as county auditor, to extendthe taxes upon the roll of that county accordingly. [1] The Nevada Tax Commission was created under an act of the last legislature (Stats.1913, p. 175), which provides that it shall be composed of the first associate commissioner ofthe state railroad commission and two other persons to be appointed by the governor, with theconsent and advice of the senate. Regarding the powers of the commission the act provides: Sec. 4. Said Nevada Tax Commission, hereinafter and heretofore referred to as saidcommission,' is hereby empowered to exercise general supervision and control over the entirerevenue system of the state; and in pursuance whereof shall possess the following specialpowers: First: To confer with, advise and direct assessors, sheriffs (as ex officio collectors oflicenses), and county boards of equalization, as to their duties, and to direct what proceedings,actions or prosecutions shall be instituted to support the law. And in pursuance whereof saidcommission may call upon the district attorney of any county, or the attorney-general, toinstitute and conduct such civil or criminal proceedings as may be demanded; Second: To have original power of appraisement and assessment of all propertymentioned in section 5 of this act;

Third: To have final powers (other than the courts) to equalize property valuations asprovided in sections 6 of this act; Fourth: To establish and prescribe general and uniform rules and regulations governingthe assessment of property by the assessors of the various counties, not in conflict with law;to prescribe the form and manner in which assessment rolls or tax lists shall be kept byassessors 9 !

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(and county commissioners shall supply books for the use of assessors in such form), and alsoto prescribe the form of the statements of property owners in making returns of their property;and it is hereby made the duty of all county assessors to adopt and put in practice such rulesand regulations and to use and adopt such form and manner of keeping such assessment rollsor tax lists, and to use and require such property owners to use the blank statements requiredby said commission in making their property returns; Fifth: To require assessors, sheriffs (as ex officio collectors of licenses) and the clerks ofcounty boards of equalization to furnish such information in relation to assessments, licensesor the equalization of property valuations as said commission may demand. (The sixth, seventh, and eighth subdivisions of the section relate to obtaining testimony,making investigations regarding property, and enforcing any direct or collateral inheritancelaw.) The enumeration of the said foregoing eight special powers shall not be construed asexcluding the exercise of any needful and proper power and authority of said commission, inthe exercise of its general supervision and control over the entire revenue system of the statenot in conflict with law. On properties in different counties, throughout the state, the Nevada Tax Commission, asthe final state board of equalization, at its session commencing on the second Monday inOctober, 1914, made increases in valuations amounting to many millions of dollars. Thevaluations in Esmeralda County were increased over $2,000,000, or about 50 per cent. Last April the respondent commissioners prepared a budget, by which they estimated theamount required to pay the expenses of conducting the public business of Esmeralda Countyfor the ensuing year at $90,109.76, and as the county tax rate fixed 5 cents for interest andsinking fund, 30 cents for county schools, and $1.20 for general county purposes, making atotal of $1.55 for each $100 of assessed valuation.


On or about the 20th day of November, 1914, the petitioners ordered respondent Johnson,as auditor of Esmeralda County, to extend upon the assessment roll the increased valuationassessment, and, in view of such increased assessment, ordered the board of countycommissioners to reduce the tax rate for county purposes from $1.55 to $1.16 on each $100of assessed valuation. The respondents have accepted the increase so made in valuation. At the meeting of the board of county commissioners on November 23, 1915, the countytreasurer reported that through inadvertence the amount required for the county schools hadnot been included in the budget, but, to provide for the same, a tax of 30 cents had been fixedby the board; that for lack of funds it was impossible to allow bills for salaries and otherexpenses for the month of October; that all the funds were depleted; that interest-bearingwarrants were being issued for teachers' salaries; that on December 1, 1914, the countyliabilities would amount to approximately $17,000; and that the expenses of the countyexceeded the budget in that sum. The board estimated that the tax levy made by it in Aprilwould raise only sufficient revenue on the increased valuation to meet the requirements of thecounty for the current year, and ordered that the tax rate of $1.55, as previously made by theboard, be collected, and the auditor was instructed to extend and deliver to the countytreasurer the tax roll accordingly. As respondents are obeying the order of petitioners increasing the valuations, the onlyquestion necessarily involved is whether the Nevada Tax Commission is authorized by thestatute to order the board of county commissioners to reduce the rate of $1.55, fixed by them,to $1.16, as ordered by the commission. An act passed in 1891 (Rev. Laws, sec. 3818) provided:That if, after the equalization of taxes in the several counties of this state, it shall appear thatthe levy previously made by the board of county commissioners of any county of this state forcounty purposes will result in the 0 !

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collection of a revenue, either in excess or a deficiency of the requirements of such county forthe current year, then, and in such event, the board of county commissioners in any suchcounty shall have the power, and it is hereby made the duty of such board of countycommissioners, to immediately meet and either reduce or raise the rate of taxation, sopreviously levied, to such a sum as such board in its judgment may consider sufficient toinsure the collection of such an amount of revenue as will answer all the requirements of suchcounty for such current year. In an act passed in 1903 (Rev. Laws, sec. 3827), section 2, applicable to EsmeraldaCounty, provided that the tax rate for the year 1905 for county purposes, exclusive of the tax

to pay the interest and maintain the sinking fund applicable to bonded indebtedness, shouldbe 5 cents lower on each $100 of assessed valuation than the tax rate for such countypurposes in 1904; that thereafter such tax rate should be diminished annually at the rate of notless than 5 cents on each $100 of assessed valuation until it reached $1.50 on the $100 ofassessed valuation, and thereafter should be reduced annually at the rate of 2 1/2 cents on the$100 of assessed valuation until it reached 70 cents on the $100 of assessed valuation; andthat thereafter the permanent limitation of taxation for such county purposes, exclusive of taxto pay the interest and maintain the sinking fund, should be 70 cents on each $100 of assessedvaluation. In the answer it is alleged that the board fixed the tax rate of $1.20 in April, in compliancewith the last mentioned act of the legislature. As the board has not attempted to raise or lowerthe rate so fixed, any question as to whether they may increase or decrease the rate under theact of 1891 is not material if the tax commission is not authorized to increase or decrease therates or to order the board to reduce the rate fixed by the board. The first subdivision ofsection 4, quoted above, of the act creating the Nevada Tax Commission states that they areto confer with, advise and d

nevada reports 1914-1915 (38 nev.).pdf

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