Several other questions are discussed in the brief of counsel for the plaintiff in error, but, as the point already considered disposes of the case, we deem it unnecessary to consider any other matter. The judgment is reversed. All the justices concurring.

(52 Kan. 454)

ANDERSON v. BURNHAM. (Supreme Court of Kansas.

Dec. 9, 1893.) ADVERSE POSSESSION-WHAT CONSTITUTESCOLOR OF TITLE.

1. Possession of land by an adverse occupant for more than 15 years, which is actual, notorious, continuous, and exclusive, will give title thereto, although such possession is entirely destitute of color of title.

2. Where there is subjection to the will and dominion of the occupant manifested in some appropriate manner adapted to the condition and location of the land, a residence thereon is not essential.

3. The evidence examined, and held to be sufficient to show adverse possession by the occupant of the land in controversy.

(Syllabus by the Court.)

Error from district court, Allen county; L. Stillwell, Judge.

Action by Nelson Burnham against Thomas Anderson to recover land. Plaintiff had judgment, and defendant brings error. Reversed.

Ewing & Bennett and Oscar Foust & Son, for plaintiff in error. Hutchings & Keplinger, for defendant in error.

JOHNSTON, J. This was an action brought by Nelson Burnham against Thomas Anderson to recover 160 acres of land in Allen county. To sustain his right of recovery, Burnham showed a patent from the United States to the Missouri, Kansas & Texas Railroad Company, dated November 3, 1873, and also a chain of title from the railroad company, through several conveyances, to himself. The patent and the instruments of conveyance were duly recorded in the office of the register of deeds. Anderson rests his ciaim of title upon adverse possession of himself and grantor for more than 15 years prior to the commencement of the action. Upon the question of adverse possession, the only evidence produced was that offered by Anderson. It showed that Anderson purchased the land from C. O. Starkey in 1881, who then conveyed such interest or title as he had to Anderson by quitclaim deed. In 1866, while it was yet government land, and subject to entry by settlers, Starkey entered upon it with a purpose of procuring a title thereto under the laws of the United

stakes at each corner of the quarter section, indicating the boundaries and extent of his claim. He broke or plowed a portion of it, which was cultivated and put in crops every year thereafter, until the land was sold to Anderson. Hedgerows were broken out, and in 1868 he built a hay barn and corncrib, which was a permanent structure and a visible evidence of occupancy. He used that portion of the land not in cultivation as a meadow, cutting and putting up hay thereon each year of his occupancy. He was an unmarried man until 1879, and did not build a residence upon the property until that year, but from the time that he entered upon it, until the residence was built, he lived with his father upon an adjoining farm. At no time was his possession interrupted, and in the vicinity where it was located it was known and recognized as "Starkey's Claim." He plowed entirely around the quarter section 20 12-inch furrows, built a house and stable, planted 300 fruit trees, lariated and herded his stock upon it, and remained in undisputed possession until it was sold and transferred to Anderson, in 1881. Anderson immediately took possession, fenced and cultivated all but 75 acres, which was put in a pasture, planted an additional orchard, built other buildings, and resided upon the farm continuously until the commencement of the action, which was August 6, 1889. There was no pretense of possession by Burnham, nor by any of his grantors. On the other hand, it is shown that an agent of the railroad company, who was engaged in locating and appraising the lands granted to the company, had notice of Starkey's possession, as well as of the claim which he made to the land. It is clear from what has been stated that there has been an actual occupancy by Anderson and his grantor, clear, positive, notorious, and continuous, for more than 15 years before the commencement of the action. Did such occupancy constitute adverse possession, which ripened into a good title, as against the legal owner? Starkey could obtain no right against the United States by reason of his possession, but it appears that the title passed from the government in 1873, and there was a lapse of more than 16 years thereafter before the possession was challenged. During all that time Anderson and his grantor were claiming and holding in hostility to the rights of the railroad company and those holding under it. It is true that Starkey had no paper title. but this is not essential to adverse posses sion, nor to the acquirement of title by vir tue of the statute of limitations. Our statute does not, as do those of some of the states, make color of title an essential element in a title by limitation. Civil Code, § 16. In Wood v. Railway Co., 11 Kan. 324, it is said that "a mere trespasser, without

color of right or title, who has been in the actual possession of real estate for fifteen years, claiming title thereto, becomes the owner of the property, by virtue of the statute of limitations, if the property has been owned during all that time by some individual or individuals, and not by the United States. Mere possession, therefore, of lands to which the government has parted with its title, for any period, however short, with a claim of ownership, may be said to be an incipient or inchoate title, for such a possession will in time ripen into a complete, perfect, and absolute title." This doctrine was reasserted in Rosa v. Railway Co., 18 Kan. 127. It is the holding of the notori ous and exclusive possession of the land in hostility to the rights of the owner which gives the title, and not any mere instrument or paper under which claim is made. Possession by any adverse occupant, which is actual, continuous, and exclusive, will give title when the bar of the statute becomes complete, although such possession is entirely destitute of color of title. The difference between title acquired by adverse occupancy under color of title and without such color is that under the former the color of title gives character to the possession, and gives rise to the presumption that the claimant intends the entry shall be coextensive with the description in the deed, while under the latter the title will only be coextensive with the actual, visible, and continued occupancy. Gildehaus v. Whiting, 39 Kan. 711, 18 Pac. 916; Roots v. Beck, 109 Ind. 472, 9 N. E. 698.

If the entry upon the land by Starkey was actual, and the holding of the possession was notorious and exclusive from 1873, when the railroad company acquired the legal title, it would amount to a disseisin, which would give title at the end of the statutory period. It is immaterial what may have been his right or claim of right to the land, and what may have been his motive, if he entered upon the land and held a hostile possession as against the owner of the legal title. Fitzgerald v. Brewster, (Neb.) 47 N. W. 475. It is true that Starkey did not reside on the land until 1879, but it is not necessary that a person should reside upon real estate in order that he may be in the actual possession of the same. If it is subjected to the dominion of the claimant, manifested in some appropriate manner, adapted to its character, condition, and locality, by which the party proclaims to the public that he asserts an exclusive control and ownership of the land, a residence upon it is not essential. Gilmore v. Norton, 10 Kan. 491; Barstow v. Newman, 34 Cal. 91; Webber v. Clarke, 74 Cal. 11, 15 Pac. 431. In the early years of the occupancy of the land by Starkey, the country was new, sparsely settled, and not much of it was in actual cultivation, but this land, like that surrounding it, was largely used for hay and grazing purposes. v.34P.no.14—67

owner.

It was not inclosed with a fence, but that is not essential to actual and adverse possession. The use which he made of it was that to which it was adapted, and the improvements which he placed thereon proclaimed to all that he was exercising rights of ownership over the land, inconsistent with the right of the real The improvements marked the boundaries of the land, and left no question that he was claiming the entire quarter section. His Occupancy and use were continuous from year to year, so that he could not be regarded as an occasional trespasser, nor can his possession be regarded as hidden or intermittent. For more than 15 years this possession was maintained without interference by the holder of the legal title, or any attempt by him to dispute the rightfulness of the possession of Starkey and Anderson. During this long period of occupancy and possession valuable improvements were placed upon the land, but not until August, 1889, did the owner challenge the possession or the rightfulness of the claim and possession of the occupant. It was then too late; that possession had ripened into a title. As the evidence is undisputed, there is no necessity for a retrial of the facts, and therefore the judgment of the court will be reversed, and the cause remanded, with the direction to enter judgment in favor of the plaintiff in error. All the justices concurring.

(22 Nev. 15)

STATE ex rel. BECK v. BOARD OF COM'RS OF WASHOE COUNTY et al. (No. 1,393.) (Supreme Court of Nevada. Jan. 2, 1894.) COUNTY COMMISSIONERS-MEETINGS-RECORDS.

The acts of a board of county commissioners between its regular meetings are void where its records show that the preceding regular meeting was adjourned sine die, and fail to show a compliance with the provisions of Gen. St. § 1945, for calling special meetings.

Original proceeding on application for writ of certiorari on the relation of H. H. Beck to the board of county commissioners of Washoe county and John B. Williams, auditor of said county.

B. F. Curler, Dist. Atty., Benjamin Curler, and Clark & Jones, for relator. J. L. Wines, for respondents.

MURPHY, C. J. This is an application for a writ of certiorari requiring the board of county commissioners of Washoe county, and John B. Williams, auditor of said county, to certify up the proceedings of said board and auditor in reference to a certain claim of C. C. Powning, amounting to the sum of $1,000, for money advanced and expended by him on account of celebration of 4th of July, 1893, at Reno, which claim was allowed by the board, and audited by the county auditor, but has not as yet been paid by the county treasurer. It is not disputed but what the money was advanced and ex

pended as set forth in the claim as presented to and allowed by the board, but the relator claims and argues that in allowing said claim the board of county commissioners exceeded its jurisdiction; therefore its acts are null and void.

A number of questions were discussed in the oral argument before this court, and the points are referred to in the brief of the attorneys for the relator; among others, the grave question of the constitutionality of the act of the legislature of 1893, authorizing the boards of county commissioners to appropriate money for encampments and other public holiday celebrations, (St. 1893, p. 127.) The court has been asked to pass upon and determine this question. Were it necessary for the decision of this case we would not hesitate to do so; but from the view we take of the questions submitted it is unnecessary to question the validity of the act, and courts are unwilling to pass upon the unconstitutionality of an act of the legislature unless it becomes absolutely necessary to do so for the purpose of deciding the question then under consideration. We therefore deem it necessary to notice but one point argued by the attorneys for the relator, and that is whether the board of county commissioners was legally in session on the 6th day of November, 1893, on which day it passed upon and allowed the claim in question. If it was not, the acts of its members were absolutely void, and the allowance of said claim must be set at naught. Section 1942, Gen. St., provides for the election of a board of county commissioners in each county in the state. Section 1944 reads: "The meetings of the boards of county commissioners shall be held * * on the first Mondays of January, April, July and October, of each year, and shall continue from time to time, until all the business before them is disposed of." Section 1945 provides for the calling of special meetings of the board if the business of the county should require the holding of such. The order calling a special meeting shall be signed by a majority of the board, and the order shall be entered on the records of the board. The clerk shall give notice to the members not signing the order, and the notice calling such special meeting shall be published in a newspaper for one week. Boards of county commissioners, being creatures of the statute, invested with special powers, can only exercise such powers in the manner expressly conferrred by the statute, and their acts must affirmatively appear to be in conformity with the provisions of the statute giving them power to act. Therefore, before the proceedings had or business transacted by the board of commissioners of Washoe county on the 6th day of November, 1893, can be upheld, it must appear from its records that that meeting was either an adjourned or a special meeting called as provided for by law. When a special meet

ing is held by the board its record must show that the order calling the same was signed by the members of the board, or a majority thereof, and those who did not sign were notified of the order calling the same, and that the notice was published in the newspaper for one week, and what were the purposes for which the special meeting was to be held as stated in the order calling the same; and, if such entries are not made in the record book, everything done at such special meeting must be held absolutely void for want of jurisdiction, because jurisdictional facts of tribunals of special and limited jurisdiction must appear on its records. The record of the proceedings of the board of county commissioners brought up by the respondents by way of return to the writ issued in the case, among other things, shows the following: "Board of county commissioners met October 2, 1893, and, after certain business, adjourned sine die." There is nothing in the record that would indicate or impart information to any taxpayer in Washoe county that the board intended to meet on the 6th day of November for the purpose of transacting any business, and when it adjourned without date on the 2d day of October, 1893, it could not meet again as a board of county commissioners until the first Monday of January, 1894, without pursuing the course as provided for in section 1945. The next record we have of the proceedings of the board reads as follows: "At a meeting of the board of county commissioners of Washoe county, Nevada, held November the 6th, 1893, the following order was made: 'Washoe County, to C. C. Powning, Dr. For money advanced and agreed to be advanced on account of celebration of 4 of July at Reno, 1893, and for decorating county bridge and streets with bunting and other emblems, $1,000.'" This claim is subscribed and sworn to by C. C. Powning, and allowed by a majority of the board of commissioners. The record before us fails to show that the meeting held on the 6th day of November, 1893, was either an adjourned or a special meeting, and, the record being silent, we must presume that it was neither one nor the other, and that the board as a board had no authority to meet and transact any business on that day. It is an easy matter for the boards of commissioners of the several counties, if the business of the county should require weekly or monthly meetings, for them to instruct their clerk to enter an order in their proceedings adjourning over from week to week, or month to month, as the business may require; and at such adjourned meeting they can transact any business that might have been transacted at a regular meeting, of which it is but the continuation. Being fully satisfied that the law has not been complied with, we therefore decide that the proceedings of the commissioners had on the 6th day of November, 1893, in attempting to allow the claim

in question, were fatally defective for want of jurisdiction, and must be quashed, and it is so ordered.

BIGELOW and BELKNAP, JJ., concur.

(4 Wyo. 419)

KAHN v. TRADERS' INS. CO. (Supreme Court of Wyoming. Dec. 1, 1893.) FIRE INSURANCE-ACTION ON POLICY - EVIDENCE -ORDER GRANTING NEW TRIAL-APPEAL.

1. Where a verdict for plaintiff is set aside and a new trial granted, and, plaintiff electing to rely on his exceptions taken to such action of the court, and refusing to proceed further, the action is dismissed, and judgment rendered for defendant, plaintiff may, on appeal from this judgment, obtain a review of errors committed in setting aside the verdict and granting a new trial.

2. A defense to an action on a policy of insurance, based on an arbitration clause in the policy, cannot be availed of unless pleaded.

3. A provision in a policy that the amount of "sound value and of damage" shall be determined by mutual agreement, or, failing to thus agree, "the same shall be determinable by competent and disinterested appraisers," does not make such agreement or appraisal a condition of recovery on the policy, when the insurer denied any liability whatever.

4. An agent of an insurance company, who is empowered to act on application for insurance without consultation with any officer or agent of the company, and to fill up, countersign, and issue blank policies signed by the president and secretary which are intrusted to him for the purpose, is a general agent, and his knowledge of matters relating to the contract is to be treated as the knowledge of his principal.

5. Consent to additional insurance given by an authorized agent, in reliance on which the insured acts, will bind the company, though there is a failure to comply with a provision of the policy requiring such consent to be indorsed on the policy.

6. An adjuster of a fire insurance company, authorized to adjust and settle a loss, has power to waive the proofs of loss required by the policy.

7. In an action on a fire insurance policy, a witness who was plaintiff's bookkeeper may refresh his memory by reference to a schedule of the goods destroyed, which was made by him and plaintiff after the fire, and a year before the trial, partly from memory, and partly from duplicate invoices procured from the sellers of the goods.

S. Plaintiff may enumerate and show the value of articles destroyed, though not included in proofs of loss.

9. An affidavit and schedule of loss sent to the company by insured in attempted compliance with the requirement of proofs of loss, after failure to receive any reply from the company or its agent as to whether it intended to pay his claim, and what proofs were necessary on his part, though not evidence of the facts stated therein, are admissible to show such attempted compliance with the requirements of the policy.

10. An offer made by defendant's adjuster in settlement of plaintiff's claim is admissible, when the only controversy at the time of the offer was as to the amount of the claim, and the offer was not stated to be confidential.

of the policy making it void therefor, when the property destroyed, and all the circumstances of the fire, had been already examined by defendant's agent and adjuster.

Error to district court, Laramie county; R. H. Scott, Judge.

Action by Gus Kahn against the Traders' Insurance Company. The action was dismissed, and judgment rendered for defendant, and plaintiff brings error. Reversed. The other facts fully appear in the following statement by CLARK, J.:

This is an action on a policy of insurance issued by the defendant company on the 5th day of May, 1890, insuring plaintiff against loss by fire on a stock of groceries for the sum of $1,200, and store fixtures for the sum of $300, all while contained in a certain store building situate in the city of Cheyenne, in this state. The building containing the property so insured was burned on December 26, 1890. The action was commenced in the court below on the 16th day of April, 1891.

The plaintiff, in his petition, alleged (1) the corporate character of defendant; (2) the making of the policy and its consideration, and a description of the property insured, annexing the policy, and referring to it as part of the petition; (3) that plaintiff at date of policy, and thenceforth until the fire, had an interest in the said property, as owner, in an amount exceeding $2,500; (4) that on December 26, 1890, the said property so insured was totally destroyed by fire; (5) that he "duly fulfilled all the conditions of said insurance on his part, and gave immediate notice of said fire to the agents of the said defendant, and within sixty days from the date of said fire gave due notice and proof of the fire and loss, and duly demanded payment of the said sum of fifteen hundred dollars;" (6) that no part has been paid, and the said sum is due to plaintiff, wherefore he prays judgment.

The policy annexed to the petition contains, among others not necessary here to state, the following provisions and conditions: (1) That, in the event of loss by fire, the loss or damage should be estimated according to the actual cash value at the time of the fire, not exceeding what it would cost assured to replace the same, deducting therefrom a reasonable amount for depreciation from usage or otherwise, such loss or damage to be paid 60 days after the written notice and proofs, as thereinafter required, shall have been made by assured, and delivered to the company in Chicago, in accordance with the terms and provisions of the policy. (2) That if the assured shall have, or after the issuance of the policy procure, any other insurance, valid or invalid, on the property insured, or any part thereof, without the consent of the company written upon this policy, then and in such case this policy should become absolutely void. (3) "Persons sustaining loss or damage by fire