2. SAME

Larwell v. Stevens.

EXCLUSIVE POSSESSION.-If at any time within ten years the legal owner and the claimant by possession have had joint possession of the premises, such a possession cannot establish a limitation against the title of the real owner.

3. SAME-INTENT TO ACQUIRE ADVERSE POSSESSION.-The intention to acquire title by adverse possession must be entertained at the time the ten years' limitation commences to run.

KREKEL, District Judge, charged the jury as follows:

The plaintiff, Larwell, brings this action to recover the possession of real estate in Kansas City on which the defendant Stevens resides. To make out his case he presents sundry conveyances embracing the property in controversy. The objection raised on the introduction of these title papers having been overruled, it may be taken that they tend to show title in plaintiff, and if the deeds are found to be genuine, vest the title in the plaintiff. To defeat the title of plaintiff, the defendant pleads the statute of limitations; that is, he says he has been ten years at least in the actual, continuous, exclusive and visible possession of the property sued for, and has thereby acquired such a right as will defeat the plaintiff's action. In the first place it is proper to call your attention to the fact that the defendant must establish the fact of the possession claimed. The possession must also be adverse, that is, in hostility to the title of the real owner; for if the possession is held by mere indulgence and by consent of the owner, and the defendant understood this and acquiesced, the possession is not adverse. A possession while so held cannot ripen into a title which will defeat the true owner of his right, because it is not adverse and hostile. As already stated, the possession, in order to avail the defendant, must be an exclusive possession; that is, he must not have held it within ten years prior to the commencement of the suit in conjunction with one who was the real owner of it. If the real owner and the claimant of the possession within ten years prior to the bringing of the suit had joint possession of the premises sued for, such a possession will not avail this defendant. The possession follows the title, and if the owner and others are in possession, the law considers the

Larwell v. Stevens.

owner to have the possession. If you shall find from the evidence that this defendant was, at any time within ten years prior to the bringing of this suit, in joint possession with his son, and that the son was the owner, and claimed title to the property in controversy to the knowledge of the defendant Stevens, then the plea is not good. The plea of the statute of limitations for the possession must be exclusive and not joint with one having the title to the property of which they are in joint possession. If you find from the testimony that the title to the property in controversy was held by any one within ten years prior to the bringing of this action, with the intention and for the purpose of giving a home to the defendant, and the defendant knew and consented thereto, such holding is not adverse, and is not in hostility to the title of the owner, and the statute of limitations will not avail the defendant. A title by the statute of limitations may be said to be the continued accretion of time from day to day until ten years are complete. During all this time the defendant must have been in open, notorious, visible and exclusive possession of the premises. In order to determine whether the possession was an adverse possession - that is, whether the defendant claimed title in himself,-you will examine all the acts, doings and sayings of the defendant pertaining to the possession of the premises. Thus the act of defendant in writing the deed of trust or mortgage by which the title to the premises in controversy was to be affected, is to be examined by you for the purpose of determining whether the defendant's possession was not in harmony rather than in hostility to the title of the owner. The non-payment of the taxes for a great length of time and the reason given for not making such payment, and the failure to pay or offer to pay any part of the taxes after they had been paid, if such failure occurred, insurance and dealing with the loss recovered, will all be carefully examined by you in order to determine the nature of the possession held by Stevens, and whether the same was adverse and in hostility to the title of the owner, or in harmony with it.

Huntoon v. Trumbull.

While the title, growing up under the statute of limitations during the ten years, becomes available to Stevens, if such possession is in hostility and not in harmony with the title of the owner, you may closely look at sayings and doings of the party who seeks to deprive the true owner of his right by mere possession in order to learn his intention. If such sayings and doings tend to nurse the young and growing title, you may arrive at a conclusion favorable to the defendant. But if any of these sayings and doings tend in the opposite direction, and indicate that the acquiring of a title by possession was not in the mind of the possessor, we may justly and properly arrive at an opposite conclusion, and adverse to the claim set up. You will thus go over the whole of the testimony, and present your conclusions in your verdict. If you find for the plaintiff, you will say in your verdict what the amount of damages are from the day of the bringing of the suit up to the time of rendering your verdict. These damages consist of the value of the property by way of rents during the time the possession has been withheld. You will also find and state in your verdict what is the monthly value of the premises. If you find for the defendant, you will so state in your verdict. The jury returned a verdict for the plaintiff.

HUNTOON et al. v. TRUMBULL et al.

(Western Division of the Western District of Missouri. October, 1880.) 1. EXHIBITION OF NEW INVENTIONS.- New inventions in machinery are not prohibited from being shown in proper places, in proper condition and at proper times, because either men or animals may become frightened at the unusual sight.

2. SAME

PROPER CARE.-The usual place of keeping machinery of new or unusual character may be considered by the jury as bearing on the question of proper care.

3. CAUSE OF RUNAWAY.- In an action for damages caused by a runaway horse, if the jury are satisfied from the evidence that the horse was dangerous in the sense of being disposed to run away, that fact may be considered with the other testimony in arriving at the cause of the runaway.

Huntoon v. Trumbull.

4. KNOWLEDGE OF HORSE'S CHARACTER.- The knowledge of the husband (who is the driver), concerning the disposition of the horse, is the knowledge of the wife.

5. ACCIDENT CAUSED BY VICIOUS HORSE.- If neither the husband nor wife knew the vicious character of the horse, yet if the jury are satisfied from the evidence that the horse was vicious, and that being so, caused or actually contributed to the running away and consequent injury, they must find for the defendants.

KREKEL, District Judge, charged the jury as follows:

The evidence in this case shows that the firm of Trumbull, Reynolds & Allen were on the fourth day of July, 1879, trading in agricultural machinery, having their place of business on the east side of Walnut, between Fourth and Fifth streets, in Kansas City; that for a number of years, in the course of their business, they had placed and kept standing on the opposite side of the street from their stores a number of machines, among them separators and a traction engine; that on said fourth day of July they took out a traction engine from Kansas City to the fair grounds for exhibition. When the engine was taken back in the early part of the afternoon of the fourth, it was left on the opposite side of the street from their store, in a gutter or ditch designating the limit of the street, the evidence showing the place and manner in which it was left. Huntoon and wife (the plaintiffs), residents of Wyandotte, Kansas, on the said fourth of July came with their family to Kansas City, Mr. Huntoon, wife and child riding in a buggy and the two boys in a street car. While going up Main street they saw the traction engine on Walnut street. After going up Main street, they crossed over into Walnut, passed up Walnut some distance, turned and came back or down Walnut street, one of the boys walking, while the other two children were with their father and mother riding in the buggy. They thus proceeded down Walnut street, and somewhere near Fifth or south of Fifth the horse ran away, upset the buggy and threw out the occupants, and it is claimed Mrs. Huntoon was permanently injured by the fall. The first and most important question you are called upon to decide, under the state of facts

Huntoon v. Trumbull.

in evidence, is, was this act of defendants', in placing the separators and the engine in the condition the evidence shows the same to have been, a wrongful and negligent act, and whether in consequence of this claimed wrong and neglect the injury complained of resulted to plaintiff? If the act of the defendants was not wrongful and negligent the defendants are not liable. But not only must the act of leaving the machinery as shown by the evidence be wrongful and negligent, but such wrong and neglect must have been the cause of the injury complained of. If the injury to plaintiff was not caused by the wrongful and negligent acts of defendants, plaintiff cannot recover in this action. In order to arrive at a proper conclusion as to whether the leaving of the separators and the engine as they were left, were wrongful and negligent acts on the part of the defendants, you will, in the first place, consider the machinery so left, its appearance as well as the necessity, if any, of exhibiting such machinery in the usual course of trade as the means of examination. Not every new invention in machinery is prohibited from being shown in proper places, in proper condition and at proper times, because either men or animals may become frightened at the unusual sight. The question for you to determine is, were the separators and engine kept in a proper place where they were kept, and was the engine kept as prudence and due regard for safety of life and property would dictate it to be kept? In order to determine. this, you may take into consideration the manner and place in which machinery of the kind referred to had been kept by defendants in the past the fact that no regulation, so far as shown, prohibits such keeping in Kansas City in the places where the same were kept. Not that such want of regulation justifies any wrongful and negligent keeping, but as bearing upon the general question of proper care.

Separators and traction engines had become articles of common use, and properly kept cannot be complained of because a horse may become frightened on account of them.

If upon full consideration of the evidence in this case you