14 Or. 514 | Or. | 1887
The appellant commenced a suit in the circuit court for the county of Umatilla, by filing a complaint therein, and the issuance and service of summons. The respondent appeared and filed a demurrer to the complaint, whicli the court sustained; and thereupon the appellant, by leave of the court, filed an amended complaint, to which the respondent also demurred, and the court sustained the demurrer. The appellant having failed to take further proceedings in the suit, the court dismissed the complaint and gave costs against him.
The appieal is really from the decision upon the demurrer to the amended complaint, the apipellant claiming that it was erroneous. He alleged, substantially, in his amended complaint that he was in the lawful possession of 160 acres of land in said county of Umatilla; that he acquired his possession and held said tract of land by entry and filing up>on the same as a timber culture claim, under the act of Congress entitled, u an Act to encourage the growth of timber on the western prairies,” pjassed March 3, 1873, and the amendments thereto ; and had received from the officers of the land office in which he made the entry a certificate, showing that said filing had been made '; that on or about the 19th day of February, 1885, ten acres of said land was and still is enclosed in a sepiarate field, and planted by appellant in walnut, locust, and box-elder trees; that appellant had within the general enclosure a substantial corral made of posts and poles, also a straw stack and an establishment for raising fowls and hogs; and had on the premises a hundred hens, and for that pmrpose had erected a barn twelve feet by thirty in size, with a chicken house ; that lie had fifteen acres of the land broken and sowed in wheat, and one acre broken but unsown at that date; that one Albert
These facts should entitle the appellant to relief, and no doubt would in a proper proceeding. It is very doubtful, however, whether they entitle him, in the shape they are pleaded, to an injunction. His claim to damages, of course, depends wholly upon his right to equitable relief. Damages in an equitable suit are merely incidental; though the appellant in this case seems to have made his claim for damages the principal ground of the suit, and the injunction incidental. It is plain to be seen that the appellant might have so framed his complaint as to have entitled himself to an injunction. If he had shown that the respondent was committing or continuing some act which would produce injury to the appellant, it would have been sufficient; but here the act had already been done; the damages had been incurred and were ascertainable. The conduct of the respondent in the premises was, according to the allegations of the complaint, lawless and highhanded, but, from all that appears therefrom, his acts were only a temporary affair, and the law affords an ample remedy for redress in damages. It is evident that the wrong has spent its force, though the appellant alleges that “ the respondent still continues and threatens to continue to trespass on said premises, and to keep his stock running thereon,” &c. This is no allegation of any fact—is only a conclusion. It does not appear that the respondent claims any right in the premises. His pretended purchase from Albert Noss of the property within said enclosure, and the possession of the premises, is the extent of the interest he is shown to have, or that he has attempted to assert, and its legality could be determined in an action in the nature of trespass quare clausum fregit.
If the allegations of the complaint showed that the respond