Staininger v. Andrews. recover they must be satisfied that the person under whom he claimed had had an actual bona fide occupation, and had subjected the land to his will and control for some space of time; that mere assertion of title, coupled with casual acts of ownership, is not sufficient. This charge is objected to on the ground that the word occupation is more extensive than the word possession, and conveyed to the jury the idea that the party must himself have lived upon the premises. The word occupant may be so used in connection with other expressions, or under peculiar facts of a case as to signify a residence. But ordinarily the expression occupation,' 'possessio pedis,'' subjection to the will and control,' are employed as synonymous terms, and signifying actual possession." The Court held the charge given by the Court below as correct, and affirmed the judgment. (See also Hutton v. Schumaker et al., 21 Cal. 453). The doctrine declared in these cases was subsequently approved in Polack v. Me Grath, (32 Cal. 15). The Kentucky Court of Appeals say in Myers et al. v. McMillan's Heirs, (4 Dana, 483) that when prior possession alone, short of twenty years, is relied on in ejectment, it must be shown to have been an actual possession, or such as would maintain trespass. So this Court held in the case of Sankey v. Noyes, (1 Nevada, 68). That the plaintiff must show an actual prior possession after he has had a reasonable time to secure it, to enable him to recover in ejectment where possession alone is relied on, is a rule clearly declared by the authorities above referred to; but what is to be understood as an actual possession, or what acts will constitute it, is the question now left to be determined. Actual possession of land is the purpose to enjoy, united with or manifested by such visible acts, improvements or inclosures as will give to the locator the absolute and exclusive enjoyment of it. But it is almost impossible to give a succinct, and at the same time a comprehensive definition of actual possession. It will be better explained and understood by a reference to decided cases, and the language generally employed by the Court with respect to it. In the case of Sander & Myers v. McMillan's Heirs, (4 Dana, 456) Judge Marshall, in delivering the opinion of the Court, makes use of this language: "From this principle it follows that the prior possessor must have Staininger v. Andrews. had such a possession at the time of the entry of the defendant, or those under whom he claims, as would enable him to maintain an action of trespass for the entry." "By actual possession," says Chief Justice Field, in Coryell v. Cain, (16 Cal. 567) is meant a subjection to the will and dominion of the claimant, and is usually evidenced by occupation, by a substantial inclosure, by cultivation, or by appropriate use, according to the particular locality and quality of the property." In the case of Murphy v. Wallingford, (6 Cal. 648) it was shown that in the year 1850 the plaintiff entered upon a tract of land, caused it to be surveyed and the boundaries marked, built a house upon it, in which he resided, and inclosed and cultivated a portion of the tract. The defendant in 1852 entered upon the land within the boundaries of the survey, but not within the inclosure. When these facts were proven the defendant moved for a nonsuit, which was refused, but the Supreme Court held that the nonsuit should have been granted. Mr. Justice Terry, in delivering the opinion of the Court, says that "possession is presumptive evidence of title, but it must be an actual bona fide occupation-a pedis possessio-a subjection to the will and control, as contradistinguished from the mere assertion of title and the exercise of casual acts of ownership. A mere entry, without color of title, accompanied by a survey and marking of boundaries, is not sufficient." So it was also held in Garrison v. Sampson, (15 Cal. 93). In Hutton v. Schumaker, (21 Cal. 454) it is said by the Chief Justice mere inclosure of a lot with a fence of this character, (a brush fence) without any other steps being taken to subject the property to any use, is not a sufficient evidence of ownership, or right of possession in the plaintiff, to sustain ejectment against one subsequently entering upon the premises." (See also Polack v. McGrath, 32 Cal. 15.) 66 Upon such possession alone can a plaintiff, who relies solely upon prior possession, recover in ejectment, after he has had a reasonable time between the location and ouster to secure such possession. But right and justice dictate that a person locating upon the public land should be protected whilst he is making the improvements which, when completed, will give him the actual possession, and Staininger v. Andrews. that he should have a reasonable time within which to do the necessary work. It may often take weeks or months of diligent work to reduce a tract of public land to actual possession, and whilst diligently pursuing the purpose of reducing it to his possession the locator may at times necessarily be compelled to leave it unoccupied. During such period, surely, the law should protect him, although if ejected he would not be able to show that he had secured an actual possession. That he had not had a reasonable time after his first location within which to secure such possession, and that he had prosecuted the necessary improvement with due diligence, would be a sufficient answer to the failure to show an actual possession. In such case, if the plaintiff shows that he first entered upon the land, marked the boundaries, and diligently made preparations to do those acts necessary to constitute an actual possession, he will be entitled to recover. The material questions, therefore, to be determined in all cases of this kind are: First-Did the plaintiff locate the land before the defendant? and Second-After locating it did he proceed with reasonable diligence to subject it to his will and control by the prosecution of such work, or the making of such improvements as might be necessary to the complete enjoyment of the land. If so, he should recover. But if, on the other hand, it be shown that he made the first location, but did not diligently follow it up with the necessary improvements or inclosures, or rather if it be found that a sufficient time had elapsed between the time of such location and the entry of the defendant to have enabled him, the plaintiff, to reduce the premises to actual possession, in such case he can only recover by showing such actual possession. Hence, if it were shown in this case that the plaintiff made the first location of the land in question, and that he had with reasonable diligence followed up such location with the necessary improvements, or with preparations to make such improvements, he should recover. That is a question of fact which could only be decided by weighing and considering all the evidence, and should therefore have been submitted to the jury. The nonsuit should not have been granted. THE STATE OF NEVADA, APPELLANT, v. JOSEPH STAN- PRESUMPTION IN FAVOR OF DISTRICT COURT. The exercise of the right in a district court to grant a new trial will be presumed to be correct and proper until affirmatively shown to be erroneous. WHAT TRANSCRIPT ON APPEAL MUST SHOW. On appeal from an order granting a new trial in a criminal case, where a reversal is urged on the ground that there was no statement or bill of exceptions in the court below, the transcript must show affirmatively that there was no such statement or bill of exceptions. CERTIFICATE OF CLERK TO TRANSCRIPT. The certificate of the clerk to a transcript on appeal, that no statement or bill of exceptions on a motion for new trial had been filed in his office, is not sufficient evidence that none was presented to the court below to authorize a reversal on that ground of an order granting a new trial. THE SAME. There is no law authorizing the review of the action of a lower court upon the simple certificate of the clerk as to how or upon what evidence it acted. FILING BILL OF EXCEPTIONS FOR NEW TRIAL. The failure to file a statement or bill of exceptions on motion for new trial in a criminal case would not justify a reversal of an order granting a new trial, the transcript not affirmatively showing that none was presented to the court. AFFIDAVIT FOR NEW TRIAL IN CRIMINAL CASES. The first, second, third and fourth grounds for new trial in criminal cases, under Sec. 428 of the Criminal Practice Act, may be presented simply by affidavit, without either statement or bill of exceptions. EXCEPTIONS TO CHARGE IN CRIMINAL CASES. Under Sec. 426 of the Criminal Practice Act, the written charge and instructions of the court to the jury are deemed excepted to, and any questions made upon them may be reviewed on motion for new trial, without a formal bill of exceptions. APPEAL from the District Court of the Third Judicial District, Washoe County. The trial of the defendant in the Court below, for the alleged murder of David D. Caldwell, on September 22, 1867, at Glendale, in Washoe County, was conducted by William Webster, District Attorney, and Boardman and Kennedy for the prosecution, and by J. S. Pitzer and Wallace and Flack for the defense. The certificate of the Clerk, referred to in the opinion, was filed subsequently to the transcript, and was as follows: 11 23 The State of Nevada v. Stanley. State of Nevada, Washoe County. In District Court, Third Judicial District. STATE OF NEVADA v. JOSEPH STANLEY. INDICTMENT FOR MURDER. State of Nevada, Washoe County, 88: I, Michael L. Yager, County Clerk of Washoe County, Nevada, and ex officio Clerk of the District Court of the Third Judicial District, do certify on honor: 1. That no bill of exceptions was filed in this cause by defendant herein during the progress of the trial, except those that appear in the Judge's minutes of testimony, nor at any time thereafter, except an exception to Court's denying motion in arrest of judg ment, which is on the minutes of Court. 2. That no statement on motion for new trial has been filed in this cause by defendant herein, and that no statement on motion for new trial by defendant in said cause is now on file or of record in my office. Witness my hand and the seal of said Court, this 26th day of March, A.D. 1868. [SEAL.] M. L. YAGER, Clerk. Robert M. Clarke, Attorney General, for Appellant. No bill of exceptions or statement on motion for new trial was taken, made, settled, agreed to or filed in the Court below; and the point of error taken and relied on by the State is, that the Court below erred in granting a new trial without a bill of exceptions or statement to base its action upon. Without a bill of exceptions or statement, the right to move is waived, and the Court is as powerless to grant a new trial as to enter a judgment without pleadings or confession. The party complaining must take some action to save or confer jurisdiction on the Court, and must make some legal showing and present some record to the Court as to the basis of its action, which may be embodied in a record and presented to the appellate Court for review. It is in no sense like an appeal from a final judgment, |