Appeal from the Fourth Judicial District Court of the State of Nevada, in and for Lincoln County; George S. Brown, Judge.
Chas. Lee Horsey and M. M. Warner, for Appellant.
Frank R. McNamee, for Respondent.
By the Court, Norcross, J.:
This is an appeal from the judgment upon the judgment roll alone. The above-named respondent brought an action in the Fourth Judicial District Court, in and for Lincoln County, against the above-named appellant, to quiet the title of the estate of Charles Lytle, deceased, to an undivided two-thirds of the southwest quarter of the southeast quarter of section 16, township 1 north, range 69 east, being a portion of what is known as the Rose Valley ranch in said Lincoln County, as tenant in common with the said appellant. The following facts are admitted by the pleadings:
On the 9th day of March, 1900, the said Charles Lytle in his lifetime and the appellant herein purchased from one A. G. Campbell, by deed of conveyance, the said Rose Valley ranch, which included the land in controversy herein. The deed to said lands from the said A. G. Campbell was taken in the name of said Charles Lytle, solely, and thereafter and on the 25th day of March, 1902, the said Charles Lytle, carrying out the understanding existing between them, conveyed to the appellant herein an undivided one-third interest in and to the said ranch property.
The following allegations, which raise no material issue of fact, are taken from the defendant's answer:
That said Charles Lytle and the defendant herein were on the 2d day of July, 1907, and for more than seven years prior thereto had been, in the possession of, and entitled to the possession, as tenants in common, of the following-described portion of the public lands which during all of said time was subject to entry under the homestead laws of the United States, more particularly described as follows, to wit: The SW 1/4 of the SE 1/4 of section 16, town
ship 1 north, range 69 east, M.D.B. and M. in Rose Valley, Lincoln County, State of Nevada; the same being used and occupied as a part and portion of what is commonly known and called the Rose Valley Ranch,' the said Charles Lytle claimed to own an undivided two-thirds thereof, and the said P. H. Devlin claiming to own an undivided one-third of said lands. That on or about the year 1884 the grantors and predecessors in interest of said Charles Lytle and of plaintiff and defendant herein constructed water ditches, and through said ditches conveyed a portion of the waters of Eagle Valley creek to and upon said lands and premises, and continuously thereafter irrigated a portion thereof, raised crops thereon, planted an orchard on a portion of said lands, fenced the same, erected substantial buildings thereon, consisting of dwelling houses, cellars, outhouses, corrals, sunk wells, and made other improvements on said lands; which said lands were continuously thereafter and up to the date of the death of said Charles Lytle, to wit, July 2, 1907, occupied and farmed by said Charles Lytle and said defendant, and subsequent to the death of said Charles Lytle were occupied and farmed by the said defendant and this plaintiff, and are now so occupied and farmed, and the products of the land so cultivated and of the orchard growing thereon shared between the plaintiff and defendant in accordance with their respective possessory interests as above set forth. That prior to the death of said Charles Lytle, as herein mentioned, and during the year 1906, and without the knowledge and consent of the said Charles Lytle, the said defendant, P. H. Devlin, filed on said land and premises a homestead in the United States land office at Carson City, Nevada, well knowing the same to be improved, cultivated, and occupied by himself and the said Charles Lytle as tenants in common, with the intent to obtain United States patent to the said above-described tract of land for his individual benefit, and the said defendant, by reason of said homestead filing, now claims to be the sole and exclusive owner of said lands and premises and
entitled to the exclusive possession thereof. That ever since the death of the said Charles Lytle, and the appointment of plaintiff herein as such administratrix, the said defendant, by reason of his homestead filing as aforesaid, has claimed, and does claim the sole ownership and right of possession of said land and premises, and denies the right of the heirs of Charles Lytle, deceased, and the plaintiff, to any right, title, interest, possession, or enjoyment in and to said lands and premises or any of the products thereof; and during the time since said homestead filing has attempted to and did prevent the plaintiff herein from gathering any of the products of said orchard, and enjoying any portion thereof, and will continue to prevent the said plaintiff from gathering any portion of the fruit growing in the orchard upon said lands unless restrained by an order of this court. That the defendant has threatened to dispossess the said plaintiff of said land embraced in his said homestead filing and every part thereof, has prevented plaintiff from erecting buildings thereon, and will continue to prevent her from enjoying any possession of said land, and will also prevent the heirs at law of said Charles Lytle, deceased, from occupying said lands unless restrained from so doing by an order of this court.
This case presents the sole question as to the right of one tenant in common to acquire a homestead right to government land of which he is in possession with a cotenant so as to exclude from the possession of said lands his said cotenant. The precise question presented upon this appeal was determined by this court in Reinhart v. Bradshaw, 19 Nev. 255, contrary to the contention of the appellant on this appeal. In that case the question, Can a tenant in common acquire a right of homestead to government land of which he is in the possession for himself and his cotenants? was answered in the negative. The correctness of the decision in the Reinhart case is well supported by authority. The Reinhart case was affirmed in Brown v. Killabrew, 21 Nev. 437, 440. In Ramberg v. Wahlstrom, 140 Ill. 182, 29 N. E. 727, 33 Am. St. Rep. 227, it was held that tenants in
common stand in such confidential relations in regard to one another's interest that one of them is not permitted, in equity, to acquire an interest in the property hostile to that of the other, and that therefore a purchase by one tenant in common of an incumbrance on the joint estate or an outstanding title to it is held at the election of the other tenant in common within a reasonable time to inure ...