Opinion of the Court. Possession of real property once proven to exist is presumed to continue. Brown v. King, 5 Met. (Mass.) 173; Gray v. Finch, 23 Connecticut, 495; Currier v. Gale, 9 Allen, 522; Smith v. Hardy, 36 Wisconsin, 417; Bayard's Lessee v. Colefax, 4 Wash. C. C. 38. As the evidence was offered to establish exclusive possession in the defendant, we think the record of the former judgment was competent. 2. Exception was also taken to the charge of the court that, if the jury believed from the evidence that since February 5, 1890, the defendant had possession of the lands of the plaintiff within said enclosure, and claimed and exercised the exclusive use and enjoyment of plaintiff's lands for grazing purposes, and attempted to exclude others therefrom, either by maintaining fences or line riding, or by force through his employés, or by any or all these means, then they should find for the plaintiff such sum as the evidence showed the reasonable value of the use and occupation of plaintiff's lands so had by defendant for grazing purposes, from said 5th day of February, 1890, to the date of trial. Defendant excepted to this charge on the ground that an attempt to exclude strangers from the pasture would not render him liable, there being no attempt to exclude plaintiff or any one claiming under him. Had all the lands within the enclosure belonged to the plaintiff, the action of the defendant, in excluding others therefrom, would have been evidence from which the jury might reasonably infer that defendant claimed the exclusive right of possession of the lands; but the argument is that, as the alternate sections had been leased by the defendant, he had a lawful right to exclude every one from the enclosure, so far as he had leased it, except the plaintiff or his lessees, and as he could not exclude others from his own lands without also excluding them from the plaintiff's, the court erred in leaving this fact to the jury as an assertion of an exclusive right to the possession of plaintiff's lands. He had as much right as the plaintiff to exclude strangers from the enclosure, since in depasturing plaintiff's lands, they would also depasture his own. But the decisive answer to this argument is that the proposition of the court was not laid down in the alternative, Opinion of the Court. that is, that if the defendant exercised the exclusive use and enjoyment of the plaintiff's lands, or attempted to exclude others therefrom, he would be liable; but, after charging them that they must find an exclusive use and enjoyment of the lands by the defendant, the court added a further requirement, which appears to have been unnecessary, that they must also find that he had attempted to exclude others therefrom. Perhaps, however, all that was meant was to call the attention of the jury to this fact as tending to prove a claim of exclusive possession. The court evidently proceeded upon the theory that, under the pleadings in the case, the plaintiff could only recover by showing an exclusive use and enjoyment of his lands by the defendant, and that it was not enough simply to show that he had pastured certain of his cattle there, without also showing that he had stocked the lands to their full capacity. In this view, it was quite unnecessary to add the instruction that they must further find that he had attempted to exclude others therefrom; but this took nothing from what the court had previously charged, and was an instruction of which the plaintiff rather than the defendant had a right to complain. It added to the plaintiff's burden of showing an exclusive enjoyment of his lands that of showing that defendant had also attempted to exclude strangers. But it did not relieve him from the duty of showing such exclusive use and enjoyment. In other words, the defendant was not prejudiced by the error and has no right to complain. Lancaster v. Collins, 115 U. S. 222. 3. In this connection, too, defendant requested the further charge that where several persons own separate tracts of land in the same enclosure, each one has the right to place enough stock therein to consume the grass upon his part of the lands, and is not liable to the others therefor; but if he places therein more stock than his part of the land will reasonably maintain, he will be liable to the other owners for the excess, and no more; and also that if the jury believed from the evidence that plaintiff's grass was consumed by stock of defendant's and other persons, then defendant would only be liable for the part consumed by his own stock, to be ascertained by appor Statement, of the Case. tioning the total damage in the proportion that the number of his stock bears to the total number doing the damage. But, as already stated, the court put the whole liability of the defendant upon the theory that he had enjoyed the exclusive use and occupation of plaintiff's lands, and had stocked them to their full capacity. If this be so, (and there was evidence to that effect,) then undoubtedly plaintiff would be entitled to recover the entire rental value of the lands for grazing purposes. If it were not so, then under the charge of the court the plaintiff could recover nothing, though defendant may have pastured thousands of his cattle upon these lands. Whether the court was correct in its view that, under the pleadings, plaintiff could not recover for a partial depasturage of his lands, is quite immaterial, since if the jury had found such partial depasturage it would have been their duty, notwithstanding, to have returned a verdict for the defendant. In the opinion of the court, the whole obligation of the defendant rested upon the fact that he had stocked the plaintiff's lands to their full capacity, and had thus enjoyed their exclusive use and occupation. The charge requested was, therefore, irrelevant. There was no error in the action of the court, and its judgment is, therefore, Affirmed. In re STREEP, Petitioner. ORIGINAL. No number. Submitted January 21, 1895. - Decided January 28, 1895. The judge in a Circuit Court having settled and signed a bill of exceptions, this court will not, on an application, supported by affidavits that the bill as settled and signed is incorrect, issue a writ of mandamus requiring him to resettle them. THIS was an application by Louis F. Streep for leave to file a petition for a mandamus requiring the judge of the District Court of the United States for the Eastern District of New Statement of the Case. York, acting as judge of the Circuit Court of the United States for the Southern District of New York, to resettle the bill of exceptions in a certain cause lately pending in said Circuit Court, and tried before that judge, wherein the United States were plaintiffs and Louis F. Streep was defendant, as to a certain request to charge, "according to the truth as the same appears by the stenographer's minutes taken on the trial," in respect of which request to charge affidavits to the effect that the bill of exceptions as settled and signed by the judge was incorrect accompanied the application. Applicant had previously moved in the Circuit Court for such resettlement of the bill of exceptions, and the motion had been denied. Mr. Frank Warner Angel for the petitioner. THE CHIEF JUSTICE, after making the above statement, said: The application for leave to file a petition for mandamus is denied. Ex parte Bradstreet, 4 Pet. 102; Chateaugay Iron Co., Petitioner, 128 U. S. 544, 557. LINDSAY v. BURGESS. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TENNESSEE. No. 191. Submitted January 25, 1895. - Decided January 28, 1895. The assignment in this court of errors to portions of the charge in an action below raises no question for the consideration of this court, unless exceptions were duly taken to them. EJECTMENT. The court below in its charge to the jury said: "This is an action of ejectment in which the plaintiff claims the legal title to and seeks to recover 5000 acres of land lying in Campbell County, Tennessee. She deraigned her title to the land as follows: On the 2d of August, 1836, said tract of land was entered by Joshua English, Samuel Burgess, and Joseph Peterson by entry No. 843. Subsequent thereto, in Statement of the Case. 1838, said English and Burgess removed from Tennessee to Missouri, where they continued to reside till their respective deaths. On August 26, 1845, a grant from the State of Tennessee, numbered 25,338, was issued to 'Joshua English and others' for said 5000-acre tract. This grant has been read in evidence. Joshua English died in 1850, leaving the plaintiff, then the wife of said Samuel Burgess, as his sole surviving child and heir-at-law. Plaintiff's husband died in July, 1874. The court instructs you that said grants from the State of Tennessee vested the legal title to the five thousand acres of land therein described in said Joshua English only, and that upon his death said title descended and vested in plaintiff as his sole heir-at-law. The defendants seek to defeat her title. They set up a tax deed from the sheriff of Campbell County, bearing date December 8, 1845, and registered in May, 1846, which it is claimed operates to divest the title out of plaintiff's father, Joshua English, and vest it in the purchasers under said sheriff's tax deed, through whom the defendants derive title; and, secondly, that under claim of right and color of title they have had seven years' adverse possession of the land in controversy before the present suit was commenced, which adverse possession, under the operation of the Tennessee statutes of limitation, vested them with the title to the land. No question is raised as to the location or identity of the land in controversy. It is conceded that the tract described in the grant and in plaintiff's declaration is the same tract that defendants claim under said tax deed and by virtue of their adverse possession. "The court instructs you that the tax deed introduced and relied on by defendants is not sufficient to show or establish title to the land; that said tax deed is null and void upon its face and inoperative to divest plaintiff's title." Verdict for defendant and judgment on the verdict, to which a writ of error was sued out. In this court the assignments of error were: (1) The court erred in charging the jury that the grant relied on by plaintiff below vested title to the land in her ancestor solely. (2) The court erred in charging the jury that the tax deed relied on by defendants VOL. CLVI-14 |