all alike. The law proceeds upon the theory that a self-governing people are self-respecting, and that whole communities will not do any act that reflects upon their honor or integrity.

Says Woodward, J., speaking for the supreme court of Iowa, 10 Iowa, 220: "We do not think the giving facilities for public convenience to the whole county, such as furnishing a building for the courts and offices, and thus relieving the county from a burden of expense, amounts to bribery. Nor would the giving property, though not of that specific character, but yet adapted to reducing the expense of a change. If the people of a town desire a county seat located at such place, there is no wrong and no corruption in their offering and giving facilities to produce that result. Either in buildings or offices direct, for the use of the public, or in property or money to procure the facilities, they may offer to take away or to lessen the pecuniary burden which would come upon that public, the county, by the location, or by a change of location. And this can not be bribery. And it may be doubted whether such an act can become bribery when the offer is to the whole county, and upon a matter of county interest only. In a case like the present there is no duty upon the county from which it, or its citizens, may be induced to swerve. They may adopt which place they see fit, and it is offering additional inducements only to offer as above mentioned."

Says Lyon, J., for the supreme court of Wisconsin, 36 Wis. 225: "Reference should be made to the cases which have sustained the validity of bids or pecuniary offers to secure the location of public buildings at some particular place. We have no controversy with these cases here. The distinction between the election of public officers, to whom for the time being the exercise of the functions of sovereignty is intrusted, and the mere choice of a site for a public building, is quite apparent. The former involves, or may involve, the integrity of the government, and the preservation of the principles upon which it is founded; while the latter is only a matter of public convenience or pecuniary interest, involving no fundamental principles whatever."

4. Boulder city became the county seat of Jefferson county by virtue of the election. This result could not be changed or modified by reason of the county commissioners failing to make the order contemplated by section 6 of the act, causing the books, records, papers, and effects of the county to be removed to that place. The result of elections can not be defeated by the failure of officers to perform an act of this kind.

And Boulder city having become the county seat of the county by virtue of the election, it follows that the application for a writ of mandate, requiring the county officers, the respondents herein, to show cause why they should not remove their offices and records to Radersburg, is insufficient to warrant the issuance of the writ, and the demurrer thereto is sustained.

Judgment for respondents accordingly.

SUPREME COURT OF NEVADÁ,

LACHMAN ET AL. v. BARNETT ET AL.

Filed February 26, 1884.

THE OWNER OF AN EASEMENT OF WAY HAS NO RIGHT TO POSSESS THE LAND as such upon which it is imposed. He has a right merely to enjoy the way. The owner of the land burdened with the easement is, in law, in possession of the land. Consequently the mere exercise of the right of way, either by the owner thereof or his tenants, will not give him actual possession of the land upon which it is imposed.

THE OWNER OF SUCH EASEMENT IS NOT JUSTIFIED IN TAKING FORCIBLE POSSESSION of the land upon which it is imposed, from the fact that the owner of such land has obstructed his right of way,

REFUSAL TO ADMIT IMMATERIAL TESTIMONY, and striking out such testimony if already admitted, is not error.

APPEAL from a judgment of the seventh judicial district court for Washoe county, entered in favor of the plaintiffs, and from an order denying the defendants a new trial. The opinion states the facts.

William Webster, for the appellants.

Thomas E. Haydon, for the respondents.

LEONARD, J. In the complaint herein it is alleged, that on and prior to March 25, 1879, and at all times since April 10, 1871, plaintiffs were and have been peaceably in the possession of the south twenty feet of lots 23 and 24, in block O, in the town of Reno, fronting twenty feet on the west line of Virginia street, and extending along the north line of the alley running easterly and westerly through said block fifty feet, together with the tenements, hereditaments, and appurtenances of said land; that on the twenty-fifth of March, 1879, while plaintiffs were peaceably in the actual possession of the west ten by twenty feet of the above-described land, defendants, without right of entry given by law, with strong hand did forcibly, wrongfully, and unlawfully make entry into said west ten by twenty feet of land and the tenements therein, and knock and tear down plaintiff's fence inclosing the same, and otherwise injure the rights and possessions of plaintiffs to said land and tenements, and ever since said wrongful entry of defendants they have forcibly, wrongfully, and unlawfully detained the possession of said west ten by twenty feet and the tenements therein.

In their sworn answer defendants specifically deny plaintiff's ownership or possession; deny that they entered without right given by law or forcibly, wrongfully, or unlawfully on the twenty-fifth of March, 1879, or at any other time, or that they knocked down the fences of plaintiffs inclosing said land, or that they forcibly, wrongfully, or unlawfully detain said land, or the west ten by twenty feet thereof, or the tenements thereon.

For affirmative defense, defendants allege that they own the fee and occupy the north eighty feet of said lots 23 and 24; that prior to April, 1871, they were the owners of the south twenty feet of said lots; that on or about April 8, 1871, defendant Thomas Barnett sold and conveyed said south twenty feet of said lots to George Becker (plaintiff's grantor), but reserved a right of way over said twenty feet so conveyed to the property owned by defendants, adjoining said twenty feet on the north; that said reservation was in writing, and con

tained in the deed of conveyance to said Becker, and embraced a strip ten feet inside, on the rear of said twenty by fifty feet conveyed to Becker for alley-way purposes; that such right of way was reserved for the exclusive use and convenience of egress and ingress to their other property on lots 23 and 24; that said Becker by said deed was limited to the use of twenty by forty feet of the said twenty by fifty feet conveyed; that from the date of said conveyance defendants had the exclusive use of said west ten by twenty feet for alley-way purposes until March 25, 1879, when plaintiffs wrongfully and unlawfully entered upon said ten feet of alley, and commenced to inclose the same, and while said alley was in the possession and open for the use of defendants; that plaintiffs' obstructions were a nuisance, and after plaintiffs' refusal to remove the same defendants removed them, in order that they might have, as it was their exclusive right to have, the use of said alleyway at all times.

The statute provides that "no entry shall be made into the lands, tenements, or other possessions but in cases where entry is given by law; and in such case only in a peaceable manner, not with strong hand, nor with a multitude of people. "When such entry is forcibly made, or where the entry shall be made in a peaceable manner, and the possession shall be held by force against the person entitled to the possession, the person so forcibly put out or so forcibly holden out of possession shall be restored to such possession by action, to be commenced and prosecuted as in this act provided:" Com. Laws, secs. 41, 42.

"On the trial of any action of forcible entry or forcible detainer, the plaintiff shall only be required to show, in addition to the forcible entry and forcible detainer complained of, that he was peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession at the time of the forcible detainer. The defendant may show, in his defense, that he or his ancestors, or those whose interest in such premises he claims, have been in the quiet possession thereof for the space of one whole year together, next before the commencement of said action, and that his interest therein is not ended or determined, and such showing shall be a bar to the action in all cases provided for in this act:" Comp. Laws, sec. 50.

Undoubtedly, under the statute, plaintiffs were bound to allege and prove that they were in the actual, peaceable possession of the west ten by twenty feet described, or some part thereof; that the defendants forcibly entered thereon and forcibly detained the same; or that defendants forcibly held possession which plaintiffs were entitled to enjoy, although the entry was peaceable.

The undisputed facts shown by the pleadings and evidence make it clear that at the time of defendants' entry plaintiffs were in the actual, peaceable possession of the entire property described in their complaint, including the west ten by twenty feet thereof.

Plaintiffs held the legal title to the land, and the only right that defendants claimed was an easement therein-the right of way over the west ten by twenty feet for alley-way purposes. This right they exercised, let us say, up to the time of the alleged obstruction of the passage-way by plaintiffs, and for many years prior thereto.

But as against plaintiffs, the mere enjoyment of this right, if such they had, did not give them possession of the land over which the easement of way existed, or oust plaintiffs therefrom.

"The ownership of an easement and that of the fee in the same estate are in different persons. Nor does the interest of the one affect that of the other, so but that each may have his proper remedy for an injury to his right, independent of the other. Thus, the owner of the fee may recover his seisin by a proper action in his own name; and the owner of the easement, if disturbed in the enjoyment of it, may sue for such disturbance in his own name. It has accordingly been held that the owner of the soil and freehold of the land over which a road is laid may have trespass against a stranger for acts of trespass done upon the land, as for cutting a tree, or digging up the soil, and may have ejectment against a stranger to recover the land if deprived of the possession of it by him. In other words, he has exclusive seisure and possession of the soil of the highway, subject only to the easement of the public. * * * And if the owner of the way shut it up and deny the owner of the land access to the same, the latter may have ejectment against him to regain the land covered by the way:" Washburne on Easements and Servitudes, 8, 9, 15, 259, 264, 265; Tyler on Ejectments, 41.

"When a highway is established, the owner of the land over which it is laid out is in possession, and the laying out of the road does not dispossess him; it only confers upon the public an easement or right to use the land for a specified purpose only, while for all other purposes the right of possession and the actual possession may remain as before. And it can make no difference in this respect whether this easement be imposed by law, for a public purpose, or whether it be created by the owner of the land for private use. * * * All these are burdens upon the land, and interfere with the owner's full use of it; but they do not operate as an ouster of the proprietor, nor to transfer his right to possession nor his interest in the soil to the public or to another. The public has a benefit in the land, but not the possession:" Read v. Leeds, 19 Conn. 187; and see Wood v. Truckee Turnpike Co., 24 Cal. 487; San Francisco v. Calderwood, 31 Cal. 589.

It being settled law that the owner of an easement like the one claimed by defendants has no right to possess the land as such upon which it is imposed, but a right merely to enjoy the way, and that the owner of the soil burdened with the easement is, in law, in possession of the land, it necessarily follows, as before stated, that the mere exercise of the right of way by defendants did not give them actual possession of any portion of the lots first described in plaintiffs' complaint.

At the trial defendants did not pretend that they had used or occupied the west ten by twenty feet except as a passage-way. They did not contradict plaintiffs' evidence to the effect that the latter were put in possession of the entire premises by Becker, their grantor, in April, 1871, and that plaintiffs and their tenants, until March 25, 1879, used all the west ten by twenty feet, with the exception of a passage-way about three feet wide, for storing wood, boxes, and bottles, and other purposes; or that this passage-way was used in common by plaintiffs and defendants. There can be no doubt that plaintiffs were peaceably in the actual possession of the land over which defendants claim an easement, on the twenty-fifth day of March, 1879, or that they were entitled to such possession at the time of the trial.

It will be noticed that, in their answer, defendants do not deny the alleged entry. They only deny that it was forcible, wrongful, or unlawful. Nor do they deny the allegation that ever since March 25, 1879,

they have detained the possession of the west ten by twenty feet, and the tenements thereon, from plaintiffs. They only controvert the allegation that such detention has been forcible, wrongful, or unlawful.

It is admitted, then, that defendants entered upon premises which were in the actual, peaceable, possession of plaintiffs, and that, at the time of the trial, they detained the possession of the same from them.

They justify their entry and the detention, by alleging that they had a right of way which plaintiffs obstructed, and that by reason thereof, neither the entry nor the detainer was forcible, wrongful, nor unlawful. There is no proof or admission of the claim of a right of way before us, but if there was, it would not be a justification of a forcible entry or forcible detainer. The statute is plain upon this point, and all the authorities support the statement just made. Under the statute every entry into lands or tenements in the actual possession of another, with strong hand or with a multitude of people, is forcible. The object of the statute was not to try titles, but to preserve the peace and prevent

violence.

At defendants' request the court instructed the jury that "if they found from the evidence that defendants, or either of them, knocked down the fence constructed by plaintiffs, for the purpose of removing the same from the passage-way which they claimed over the lands of plaintiffs, and for that purpose only, and not for the purpose of taking actual possession of the lands over which they claim the passage-way, nor for the purpose of taking possession of any part of the fifty feet claimed to be in the actual possession of plaintiffs at the time the fence was knocked down, and that defendants did not take the actual possession of any part of said fifty by twenty feet, to the exclusion of plaintiffs, they should find for defendants." Under that instruction the jury must have found that defendants knocked down the fence for the purpose of taking actual possession, and that they accomplished their purpose. They were justified by the evidence and the allegations, denials, and admissions in the answer, in so finding.

It is true, Thomas Barnett, one of the defendants, testified that when he knocked down the fence, he "used no more force than was necessary; that what he tried to do was to get the boards off for the purpose of opening the passage-way; that he did that and nothing more;" but it is quite evident that his object in removing the obstruction was for the purpose of taking and holding possession of the land. The answer shows this, and there was evidence supporting the same.

This action was commenced on the day of defendants' entry. In their answer, filed four days thereafter, they deny that plaintiffs are the owners or have been in possession of the south twenty feet of lots 23 and 24. They allege that their reservation of a right of way embraces a strip ten feet by twenty in the rear of the lots mentioned, for alley-way purposes, and that such right was reserved for the exclusive use and convenience of defendants; that by the express provisions of their deed, their grantee, Becker, was limited to the use of twenty by forty feet; that from the date of their said conveyance they had had the exclusive use of said ten feet for alley-way purposes; that plaintiffs wrongfully and unlawfully entered upon said ten feet, and commenced to inclose the same, while said alleyway was in the possession of and open for the use of defendants; that the fence built by plaintiffs was a nuisance, which defendants removed in