
    William Roggencamp, appellant, v. J. N. Converse et al., appellees.
    1.Practice: jury trial. In an action brought to remove a cloud from title to land, the court may hut is not hound to give-a jury trial.
    2.Adverse Possession: evidence. In such an action, where the title relied on by the plaintiff is that given by the statute of limitations for adverse possession during the statutory time, a deed in fee of the land from the plaintiff to the defendant, given more than ten years before the bringing of the action, is competent evidence, in connection with a parol lease taken by the plaintiff from the defendant, to show that the possession was not adverse.
    3. -. Where possession is such as admits the existence of a higher title, to which it is subservient, it is not adverse to that title.
    On the 11th of March, 1882, Eoggencamp brought suit, in the district court of Lancaster county against Joel N. Converse, Anna E. Converse, and David S. Gray, trustee-of J. N. Converse & Co., claiming title by advers'é possession for more than two years to the following described lands: So much of the west half of the west half of the north-east quarter of section number ten, township number eight, range number eight east, as lies north of the center line of what was and is known as the Midland Pacific railway. Also so much of the west half of the east half of the north-east quarter of section number ten, in township number eight north, of range number eight, as lies north of the ■center line of whatwas and is known as the Midland Pacific railway. Also so much of the west half of the west half ■of the north-west' quarter of section number ten, township number eight, of range number eight, as lies north of the center line of what was and is known as the Midland Pacific railway, except the right of way, forty feet wide, upon the north side of the center line of said Midland Pacific railway on each of the above described pieces of land. Also a strip of land two hundred feet wide, upon the south side, fifty feet at right angles from the eastern line of the said Midland Pacific railway, commencing at the west line -of the north-east quarter of section number ten, township number eight, of range number eight, and extending eastwardly, parallel with said .center line, and fifty feet then from twenty-one hundred and eighty feet (2,180 feet). Defendants answered, setting up a general denial, and alleged title under a deed from Roggencamp and wife, filed for record March 31, 1871, at which time Converse “ took possession of a part of said land,” the consideration in the deed being the sum of “one dollar” and “of a regular station for business upon the north-east quarter of section ten or the north-west quarter of section eleven, township eight, range eight east, in said county, by the Midland Pacific railway, as well as for the benefits growing out thereof to the public generally,” and “to the grantors in particular.” Defendants had judgment below before Gaslin, J., sitting for Pound, J., and plaintiff appeals.
    
      II. D. • Shea and Foxworthy & Son, for appellant, on right to trial by jury,
    cited: Horbaohv. Miller, 4 Neb., 31. Comp. Stat., § 280, p. 567. On question of adverse possession contended ? 1. Two persons cannot hold constructive possession of land at the same time. 3 Washburn, 124. 
      Hodges v. Fddy, 38 Vt., 327 and 344. Faught v. Holwciy, 50 Me., 24. 2. One may acquire title by adverse possession, by making the entry under a contract to lease or purchase. Comp. Stat., § 8, p. 287. Simmer v. Stevens, 6 Met., 338, and authorities cited. Maltoner v. Fimmick, 4 .Barb., 566. Ashley v. Ashley, 4 Gray, 200. 3. The plaintiff herein has been in actual occupancy of the land, clear, definite, positive, and notorious, for the period prescribed by statute. His possession has been continued adverse and exclusive to that part of land so claimed, and of which plaintiff took possession immediately after the exe■cution of his deed to defendant, and the evidence shows that the said plaintiff went into possession with intent to ■claim title to the same, and that he has appropriated the profits thereof under a claim of right which we think is strong proof of title by adverse possession. Ford v. Wilson, ■35 Miss., 504. Owen v. Morton, 24 Cal., 376. McNamee ■v. Moreland, 26 Iowa, 109.
    
      O. P. Mason, for appellees.
    Plaintiff was not entitled to jury trial. Smith v. Anderson, 20 Ohio State, 76. Larkin v. Wilson, 28 Kan., 513. On adverse possession, cited: Sparrow v. Hovey, 44 Mich., ■63. Thompson v. Felton, 54 Cal., 547. -Alexander v. Polk, 39 Miss., 755. French v. Pearce, 8 Conn., 439. .Jackson v. Johnson, 5 Cow., 92. Jackson v. Schoonmaker, 2 Johns., 234.
   Lake, Ch. J.

This case comes here by appeal from the district court for Lancaster county. The plaintiff claims that he was erroneously denied a jury trial. There is no error in the ruling of the court below in this particular. The action was brought to remove a cloud alleged to be resting on the nlaintiff’s title to land of which he claimed to be the owner in fee, and was, therefore, an equitable one, in which the court might but was not bound to give a jury trial. Code,. §§ 280-281. Harral v. Gray, 10 Neb., 186.

It is claimed also that the finding and judgment are not supported by the evidence; and in this connection, that a deed in fee simple of the premises from the plaintiff- and his wife to Joel N. Converse, one of the defendants, was improperly admitted in evidence in defense of the action. The objection made to the admission of this deed was, that it was “ immaterial and irrelevant, and not connected with this case at all.” That it can be seriously urged that this-objection should have been sustained is not a little surprising.

In the endeavor to make out his case, the only title to' the land which the plaintiff sought to show in himself was-that of possession. He claimed simply that he had occupied it adversely to the defendants for ten years and upwards, and that, consequently, whatever claim they had to' it- was barred by the statute of limitations.

The due execution and delivery of this deed to Converse was abundantly proved; in reality it was admitted. And it was under this deed that the defendants asserted 'their claim to the ownership of the land. They claimed on the trial, and produced an abundance of evidence to show that the plaintiff’s possession wras simply as lessee under the title conveyed by the deed, and not in hostility to it. The deed was both competent and material evidence, not only as showing the character of the defendants’ title, but as-being strongly corroborative of the oral testimony given to> the fact that about the time of its execution the plaintiff had fully recognized the ownership of Converse under it,, by becoming his tenant.

The evidence is not only sufficient to sustain the findings of the district court upon it, but it leaves no doubt whatever as to the fact that the plaintiff’s possession was such as admitted the existence of a higher title to which it was subservient; therefore it was not adverse to that title. Jackson, ex. dem. Swartwout, v. Johnson, 5 Cow., 74. The judgment is right, and it will be affirmed.

Judgment affirmed.

The other judges concur.  