Opinion of the Court-Ducker, J.

as lessee of the lands, had the legal title thereto within the meaning of said section 1. The term "legal title" does not have a strict legal meaning. A party may have the legal title to property although he is not the absolute owner in fee. In a broad sense it signifies title in fee as well as any inferior estate that may be carved out of an estate in fee. Legal title in a general sense signifies the right of possession as distinguished from the pedis possessio or mere actual occupation. Carroll v. Rigney, 15 R. I. 81, 23 Atl. 46; Chapman v. Dougherty, 87 Mo. 617, 56 Am. Rep. 470. "As applied to real estate, title is generally defined to be the means whereby the owner of lands has the just possession of his property." 28 Am. & Eng. Ency. Law, 232. The foregoing definition is generally accepted as an accurate definition of the term in its unrestricted signification. In this sense it is broad enough to and does include a leasehold estate. Campfield v. Johnson, 21 N. J. Law, 83.

4. The question then is narrowed down to a determination of what the legislature meant by the use of the term "legal title"; that is, whether meant in the limited sense as the means whereby one holds real estate as an owner in fee, or in a broader sense as evidence also of the right to the possession and enjoyment of some lesser estate. The word "owner," employed in said section 1, does not necessarily mean owner in fee simple, and may be applied to any defined interest in real estate including a leasehold interest. 28 Am. & Eng. Ency. Law, 234, 235; State v. Wheeler, 23 Nev. 143, 44 Pac. 430. So, if the legislature intended to give the word "owner" a much stricter meaning than is generally accorded to it in law, it is unlikely that it would have resorted to a term also general in its signification.

On the other hand, having undertaken to define the word "owner," it seems reasonable to suppose that, if it was meant to be taken in the narrow sense of owner in fee, such term, or its equivalent, would have been employed in the definition. We are inclined to the belief that the proviso in section 1, defining the term "owner,"

Opinion of the Court-Ducker, J.

was not intended to restrict the meaning of that term, but to enlarge it so as to include such person, or persons, as may have applied to the state for the purchase of lands and made first payment on the application. Strength is given to this conclusion when we consider the great amount of land throughout the state held in leasehold for grazing and agricultural purposes at the time the statute was enacted, and that it is difficult to assign a reason why the legislature should exclude such lessees from the extraordinary remedy afforded by the statute. In fact, none can be given, and if appellants' contention were allowed to prevail it would be conceded that the legislature, in selecting real estate held in fee or under state contracts for the purposes of the act, made a mere arbitrary classification, excluding from its purview great numbers of landholders in this state equally entitled to its benefits. And, so far as any subsequent legislation is concerned, they are still denied any such remedy. It may be granted that this is a matter exclusively within the province of the legislature; but, in the absence of clear expression to that effect, an intention to provide a remedy so inequitable as between landowners of this state ought not to be presumed. As the term "legal title" is not technical in its meaning, it should, especially when used in a remedial statute, be construed liberally in favor of the parties obviously entitled to its protection.

That respondent's interest in the land was by the terms of the lease limited to the extent of grazing it with live stock does not alter the legal status of the case. He was nevertheless entitled to the right of exclusive possession for such purposes, and was the only person capable of sustaining appreciable damage by the herding and grazing of appellant's live stock upon the land. We conclude that respondent, as the lessee of the Central Pacific Railway Company, had the legal right to the land described in the lease admitted in evidence, and that the instruction given by the court in this regard is correct. Consequently the court did not

Opinion of the Court-Ducker, J.

err in refusing the instructions offered by appellants, stating, in substance, that there has been a failure of proof as to respondent's ownership of the legal title.

Appellants contend that, as respondent's title to the land is not sufficient in law to enable him to maintain an action under the particular act in question, the court was without authority to enter any judgment for counsel fees. Inasmuch as we hold the title sufficient, and as the act expressly provides that the live stock which is unlawfully herded or grazed upon the lands of another shall be liable for all damages done, together with costs of suit and reasonable counsel fees, there was no error in the action of the court in fixing respondent's counsel fees at the sum of $250. The reasonableness of the amount is not questioned.

The judgment is affirmed.

Points decided

[No. 2352]

JOHN W. O'BANION AND A. W. GANDER, RESPONDENTS, v. DANIEL C. SIMPSON, APPELLANT.

[191 Pac. 1083]

1. JURY-LEGISLATURE CAN REGULATE MANNER OF ENFORCING RIGHT TO JURY TRIAL.

Under Const. art. 1, sec. 3, guaranteeing right of trial by jury, but providing that it may be waived by the parties in the manner to be prescribed by law, the legislature can regulate the manner in which the constitutional right may be secured and enforced.

2. JURY STATUTE, MAKING FAILURE TO DEMAND JURY BEFORE SETTING FOR TRIAL A WAIVER, IS REASONABLE.

The provision of Rev. Laws, 5226, that right to jury trial is waived by failing to demand it before the cause is set for trial is a reasonable regulation of the right to trial by jury, and is therefore valid under Const. art. 1, sec. 3.

3. TENANCY IN COMMON-CONVEYANCE BY COTENANT AND EXCLUSIVE POSSESSION BY GRANTEE IS OUSTER.

Where one cotenant executes a deed purporting to convey entire interest in the property described by metes and bounds, and the grantee takes exclusive possession of the property under the deed, there is an ouster of the other tenants, which at the expiration of the statutory period will ripen into title to the entire premises.

4. ADVERSE POSSESSION-POSSESSION BY EITHER PARTY AFTER THE CONTROVERSY AROSE WILL BE DISREGARDED.

In a suit to quiet title under claim by adverse possession, evidence of acts of possession of the premises by either party, after the controversy regarding the ownership thereof arose, will be disregarded.

5. TENANCY IN COMMON POSSESSION BY GRANTEE OF ENTIRE INTEREST FROM COTENANT IS NOT POSSESSION OF OTHER COTENANTS.

There is no presumption that a grantee, under a grant from a cotenant purporting to convey the entire interest, held possession as a cotenant, but such possession, if exclusive of the other tenants, is presumed to be coextensive with the deed and adverse to them.

6. APPEAL AND ERROR-JUDGMENT AFTER TRIAL TO COURT NOT REVERSED FOR EVIDENCE ADMITTED CONDITIONALLY.

A judgment in an action to quiet title will not be reversed for the admission of evidence relating to the possession of another tract of land not in controversy, but used in connection with the tract in controversy, where the court stated he had admitted such evidence merely for what it might be worth in considering the ultimate conclusions of the case.

Points decided

7. ADVERSE POSSESSION-POSSESSION OF GRAZING LAND HELD NOT

CONSTRUCTIVE.

Where the land in controversy was useful only for grazing purposes, and was part of an inclosed tract owned by several owners who grazed their cattle indiscriminately thereon, possession by a grantee of the tract in controversy by grazing his cattle on such tract under care of a herder to confine them to that tract was not constructive possession merely, but was actual.

8. ADVERSE POSSESSION-NEED NOT BE POSSESSION DURING PERIOD PRECEDING COMMENCEMENT OF ACTION.

To sustain a title by five years' adverse possession under Rev. Laws, 4953, the five-year period of possession need not be the five years immediately preceding the commencement of the action.

9. ADVERSE POSSESSION-NEED NOT CONSIST OF STATUTORY ELEMENT, WHERE THEY ARE NOT SUITED TO LAND.

Though Rev. Laws, 4957, makes cultivation, improvements, inclosure, or residence upon the land possession thereof, it is not necessary for a claimant to land under claim founded on written instrument to prove any of those elements to establish adverse possession, where the land was suitable only for grazing land, so that its inclosure, cultivation, or improvement would not be profitable.

10. ADVERSE POSSESSION-GRAZING OF CATTLE HELD NOT TO DEFEAT EXCLUSIVE POSSESSION BY PLAINTIFFS.

Where plaintiffs claimed the land under a deed, and were grazing their cattle thereon under care of a herder, whose duty it was to prevent the cattle from straying off from the land, the fact that plaintiffs did not prevent the grazing of cattle of other owners upon the land does not prevent their possession from being exclusive.

NOTICE TO ALL OF CLAIM OF TITLE.

The actual possession of land and the exercise of the usual acts of ownership over it is constructive notice to all the world of the claim of title under which the possessor holds.

12. TENANCY IN COMMON PERMITTING CATTLE OF GRANTEE OF FORMER COOWNER TO GRAZE HELD NOT TO INTERRUPT ADVERSE POSSESSION.

Where the grantees of entire interest in grazing lands from a tenant in common had taken exclusive possession of the land under their deed, the fact that thereafter they did not prevent cattle belonging to a grantee from the other original cotenant from grazing on the land did not interrupt the adverse character of their possession.

13. APPEAL AND ERROR-TRIAL COURT FINALLY DETERMINES CONTROVERTED QUESTIONS OF FACT.

The determination of the controverted questions of fact raised by the evidence is for the trial court, not for the supreme court on appeal.