Our investigation, therefore, into the sufficiency of the special verdict must be controlled by the principles established, in this branch of the law, by the decisions of the courts, particularly those of the Supreme Court of the State of Nebraska and of this court.
In French v. Pearce, 8 Conn. 439, 440, it was said that "it is the fact of exclusive occupancy, using and enjoying the land as his own, in hostility to the true owner, for the full statutory period, which enables the occupant to acquire an absolute right to the land."
In Sparrow v. Hovey, 44 Mich. 63, a refusal of the court to charge that, when the title is claimed by an adverse possession it should appear that the possession had been "actual, continued, visible, notorious, distinct, and hostile," but merely charging the jury that the possession " must be actual, continued, and visible," was held erroneous. In Pennsylvania, it has been repeatedly held that, to give a title under the statute of limitations, the possession must be "actual, visible, exclusive, notorious, and uninterrupted." Johnston v. Irwin, 3 S. & R. 2.91; Mercer v. Watson, 1 Watts, 330, 338; Over field v. Christy, 7 S. & R. 173.
In Jackson v. Berner, 48 III. 203, it was held that an adverse possession sufficient to defeat the legal title, where there is no paper title, must be hostile in its inception, and is not to be made out by inference, but by clear and positive proof; and further, that the possession must be such as to show clearly that the party claims the land as his own, openly and exclusively.
In Foulk v. Bond, 12 Vroom, 41 N. J. Law, 527, 545, it was said: 'The principles on which the doctrine of title by adverse possession rests are well settled. The possession must be actual and exclusive, adverse and hostile, visible and notorious, continued and uninterrupted."
It was held in Cook v. Babcock, II Cush. 206, 209, that "when a party claims by a disseisin ripened into a good title by the lapse of time as against the legal owner, he must show an actual, open, exclusive, and adverse possession of the land. All these elements are essential to be proved, and failure to establish any one of them is fatal to the validity of the claim."
In Armstrong v. Morrill, 14 Wall. 120, 145, this court, speaking through Mr. Justice Clifford, said: 'It is well settled law that the possession, in order that it may bar the recovery, must be continuous and uninterrupted as well as open, notorious, actual, exclusive, and adverse. Such a possession, it is conceded, if continued without interruption for the whole period which is prescribed by the statute for the enforcement of the right of entry, is evidence of a fee, and bars the right of recovery. Independently of positive statute law, such a possession affords a presumption that all the claimants to the land acquiesce in the claim so evidenced." Hogan v. Kurtz, 94 U. S. 773, is to the same effect.
The authorities in Nebraska are substantially to the same effect on questions of title by adverse possession.
A leading case is Horbach v. Miller, 4 Neb. 31, 46, 48, in which it was said that "the elements of a title are possession, the right of possession, and the right of property; hence, if the adverse occupant has maintained an exclusive adverse possession for the full extent of the statutory limit the statute then vests him with the right of property, which carries with it the right of possession, and therefore the title becomes in him. . . . The submission of the case to the jury correctly was that if they believed, from the evidence, that the plaintiff in error, for ten years next before the commencement of the action, was in the actual, continued, and notorious possession, of the land in controversy, claiming the same as his own against all persons, they must find for the plaintiff in error." In Gatling v. Lane, 17 Neb. 77, 82, the language used was: "A person who enters upon the land of another with the intention of occupying the same as his own, and carries that intention into effect by open, notorious, exclusive adverse possession for ten years, thereby dis-seises the owner." In Parker v. Starr, 21 Neb. 680, 683, a recovery was sustained where the testimony clearly showed that " the defendant and those under whom he claims have been in the open, notorious, and exclusive possession for ten years next before the suit was brought." In Ballard v. Hansen, 33 Neb. 861, 864, the following instructions, which had been given in the trial court, were approved by the Supreme Court: 'The jury are instructed that adverse possession, as relied upon by the plaintiffs in this action, is the open, actual, exclusive, notorious, and hostile occupancy of the land, and claim of right, with the intention to hold it as against the true owner and all other parties; such occupancy, if continuous for ten years, ripens into a perfect title, after which it is immaterial whether the possession be continued or not." "If you find and believe, from a preponderance of the testimony in this case, that the plaintiff was in the actual, open, notorious, exclusive, continuous possession of any of the lots in controversy for ten years, claiming to own and hold them as against all others, as to such lots he is entitled to recover."
Tested by these definitions, it is obvious that if the title relied on in this case, by the defendant below, was fully described and characterized by the special verdict, it was defective in two very essential particulars; in that it was not found to have been actual and exclusive. A possession not actual, but constructive; not exclusive, but in participation with the owner or others, falls very far short of that kind of adverse possession which deprives the true owner of his title.
Where a special verdict is rendered all the facts essential to entitle a party to a judgment must be found, and a judgment rendered on a special verdict failing to find all the essential facts is erroneous. * * *