
    Charles G. Dorsey, appellee, v. Francis A. Nichols et al., appellants.
    Filed January 3, 1895.
    No. 5865.
    1. Evidence examined, and held to sustain the finding of the district court.
    '2. Review: Jurisdiction. A defendant who has answered to the merits and submits to the jurisdiction of a court of equity cannot object for the first time on appeal in this court, on the ground that the plaintiff had an adequate remedy at law. (Sherwin v. Qaghagen, 39 Neb., 238.)
    Appeal from the district court of Gage county. Heard below before Hastings, J.
    
      Griggs, Rinaher & Bibb, E. E. Brown, and Robert Ryan, for appellants.
    
      L. M. Pemberton, contra.
    
   Post, J.

This is an appeal from the district court of Gage county, the subject of the controversy being the line between lots 1 and 2, in block 64, in the city of Beatrice. We learn from the pleadings that there have been two surveys of said city, the first of which, or old survey, as it is designated in the record, was about the year 1857, and the new, or Smith survey, in the year 1872. The plaintiff is admitted to be .the owner in fee-simple of lot 2, while the title to lot 1 is, and has long been, in the defendants and their grantors. Both lots were improved with reference to the old survey, and while the boundaries thereof were still marked by the original stakes. There is situated on lot 2 a frame store building, erected in 1869 or 1870, the east wall of which is on the line as originally marked.' On lot 1 is a hotel building, described in the record as the “Randall House, the east wall of which is on the line abutting on Sixth street, according to the old survey, but projecting two feet or more into the street, according to the Smith survey. The property in dispute-is the strip two feet in width between the division lines as shown by the two surveys. The plaintiff, it seems, had been, at the time of the Smith survey in 1872, in the exclusive, uninterrupted, adverse possession for more than ten years of the disputed property under a claim of title thereto. In fact his prescriptive title at that date is not seriously controverted. But it is alleged that in the year 1882, the location of said line being in dispute in consequence of the Smith survey, a compromise was effected between the plaintiff acting in his own behalf, and the defendant Nichols acting for himself and others jointly interested with him as owners of lot 1, whereby it was mutually stipulated and agreed that the line established by the last named survey should be accepted and confirmed as the true boundary of said lots. It is further alleged that thenceforth, until about the time of the commencement of this action, the said line was recognized by the plaintiff as the division between his property and that of the defendants. The reply is a general denial. On a final hearing before the district court there was a decree for the plaintiff in accordance with the prayer of his petition, perpetually enjoining the defendants from their threatened interference with his possession of the strip of ground in dispute and particularly from removing or interfering with the foundations of his building situated on said lot 2 and dismissing a cross-petition by the defendants, in which substantially the same relief was asked against the plaintiff. The findings of the court are as follows:

“The court being fully advised in the premises finds for the plaintiff, and that the said Charles G. Dorsey is and was, at the commencement of this action, the owner of lot 2, block 64, in the city of Beatrice, Nebraska, and of the building situated thereon, and that said building was placed and located on said lot where the same now stands about the year 1869, and was located in accordance with the original survey and plat of the city of Beatrice as the same appears of record; and that the said Charles G. Dorsey and the grantors through whom he claims title have been continuously in the possession of the said building from the erection of the same until the present time. And the court further finds that no boundary line between said lot 2, in block 64, and lot 1, in said block 64, was ever agreed upon or settled and determined by the agreement and consent of said parties. The court further finds that about the year 1882 said plaintiff, by oral license, permitted the said defendant to excavate and lay a wall under the east side of his said frame building on said lot 2 an indefinite distance back along the line of said lot as determined by the survey of A. B. Smith in the year 1872, and during the year 1882 said excavation was made and said wall laid for the distance of from fifty to sixty feet southward from the north line of said lot, and that afterwards, and without the consent of said plaintiff, said excavation and the said wall were extended to the south line of said lot 2; and the court further finds that in the year 1888 said plaintiff recognized the line of said second survey by A. B. Smith as the boundary between said parties, in laying a sidewalk along the north line of said lot 2.
“ 2. The court further finds, as a matter of law, that said plaintiff is not estopped by the license given by him as aforesaid, nor by his recognition of said line of the survey of 1882 in the building of the sidewalk, from asserting his title and possession to the premises occupied by him and covered by his frame building as aforesaid, and that the plaintiff is the owner of said premises so occupied by him, and that such occupancy is in accordance with the original survey and plat of the city of Beatrice.”

It is deemed unnecessary to examine the evidence at length. It is sufficient to say that Mr. Nichols testifies positively to the compromise alleged, and that the wall on the line of the Smith survey, to which reference is made in the findings of the court, was built by the defendants in pursuance of an express understanding with the plaintiff that the latter was thereby relinquishing all claims either to title or possession of said property, and that their purpose in erecting the said wall was to reduce the disputed property to possession, which purpose was known to and acquiesced in by the plaintiff. There is considerable evidence corroborative of the above and tending strongly to sustain the contention of the defendants. The plaintiff on the other hand testifies that some time in 1832 Nichols applied to him for license to excavate under his, plaintiff’s, building on lot 2 in order to secure additional space for the storing of beer kegs by the saloon in the basement.of the Randall House adjacent thereto, and which was accordiugly granted on condition that the defendants would provide adequate support for the wall of his said building. Nichols, according to the plaintiff, acting under the license thus conferred, built an inexpensive wall of stone about two feet west of the east wall of the plaintiff’s building. Said wall commenced at a point about fifteen feet from the front of the lot and extended back twenty or thirty feet, the wall of the store building being supported by wooden posts instead of the stone foundation removed by defendants. He explicitly denies authorizing the extension of the wall beyond the point above designated and which was necessary for the accommodation of the saloon mentioned. He testifies also that the extension of said wall was constructed from the east or Randall House side of the line without his knowledge, and that he had no notice whatever of its existence or of defendant’s claim of title to the premises in dispute until about the time of the commencement of this action. He is also corroborated by other evidence. The recognition of the Smith survey, to which reference is made in the finding, consisted in the laying of a wooden sidewalk extending from east to west in front of lot 2 and commencing at the east line thereof as established by said survey. It is not claimed that the plaintiff is by that fact alone estopped to assert whatever rights he may have to the property in controversy. It is at most a circumstance tending to support the contention of the defendants, and which was, we must assume, accorded the consideration to which it was entitled by the district court.

Erom a consideration of all the facts disclosed we are unable to perceive any ground for interference with the finding complained of. The rule which must govern this case has been so often asserted as to render further reference to it in this connection entirely unnecessary.

There is a further claim by the defendants, viz., that the plaintiff, on the showing made by the record, has an adequate remedy at law, and that equity is therefore without jurisdiction over the subject of the controversy. Two sufficient answers are suggested to that proposition: First, the same questions were presented by the defendants themselves in their cross-petition; and second, the objection comes too late when made for the first time as it is in this court. (See Sherwin v. Gaghagen, 39 Neb., 238.) The decree of the district court is accordingly

Affirmed.

Ryan, C., not sitting.  