154 P. 968 | Idaho | 1916
This is an appeal from a decree of the district court of the first judicial district quieting title in respondents, except as to the paramount title of the United States, to the following described premises:
Beginning at the northwest corner of the Snowstorm mill site Sur. No. 2066 B.; thence N. 78 degrees 14' W. 441.27 feet to the NW. corner; thence S. 4 degrees 43' W. 2202.50 feet to the SW. corner; thence S. 78 degrees 14' E. 441.27 feet to the SE. corner; thence N. 4 degrees 43' E. 1,893.54 feet; thence N. 84 degrees 42' W. 10.24 feet; thence N. 6 degrees 20' E. 363 feet to the place of beginning, containing 22.28 acres more or less.
Respondents commenced this action by filing a complaint against appellant in the above named court on May 28, 1909, claiming that they were the owners, except as to the paramount title of the United States, of the premises described in the complaint, and entitled to the possession thereof, and asking that their title therein be quieted. To this complaint appellant filed its answer and cross-complaint, denying specifically the allegations of the complaint, and setting up in its cross-complaint the ownership and possession of the Sun Light mill site covering the same ground described in respondents’ complaint. Thereafter, by permission of the court, appellant filed a supplemental answer in which it set forth, among other things, that respondents were not then, and had not been for more than five years last past, in the possession of said premises, and that they had abandoned and ceased to occupy, cultivate and improve the same, and had not lived upon, occupied, improved or cultivated the same during said period of time; and further set forth that the approved plat of government survey of the lands embracing
Upon the issues thus framed a trial was had resulting in judgment for respondents quieting title in them to the premises described in the complaint.
W. R. Goldensmith, former husband of respondent Maude B. Goldensmith, did not appear on the trial of this cause. However, the record discloses that Maude B. Goldensmith is the real party in interest.
Appellant relies for reversal of this cause upon six assignments of error, which go to the admission of certain evidence by the trial court over the objection of appellant, the action of the trial court in denying appellant’s motions for nonsuit, both at the close of respondents’ case and when renewed at the close of all of the testimony, the entering of a decree in favor of respondents, for the reason that the same was contrary to the evidence and to law, and the insufficiency of the evidence to sustain the decree.
The action of the court in admitting the testimony offered by respondents during the trial of the cause and complained of by appellant, being immaterial and not prejudicial to any substantial rights of appellant, did not constitute reversible error. (Bradbury v. Idaho etc. L. Imp. Co., 2 Ida. 239, 10 Pac. 620; Works Bros. v. Kinney, 8 Ida. 771, 71 Pac. 477; McKinnon v. McIlhargey, 24 Ida. 720, 135 Pac. 826.) The remaining five assignments of error will be discussed and considered together.
From the record it appears that appellant applied for a patent for a mill site embracing the land claimed as a homestead by respondents. To this application respondents filed a protest in the United States land office, and proceedings were thereupon had, which terminated on November 16, 1914, in the rejection and cancelation of the mill site application by the Honorable Secretary of the Interior.
The proof upon the trial shows that on January 30, 1908, the premises described in respondents’ complaint were oc
On May 10, 1909, respondent Maude E. Goldensmith made and swore to a notice of possessory claim under the provisions of secs. 4552-4555, Rev. Codes, and this notice was duly recorded with the county recorder of Shoshone county on May 14, 1909. There is a substantial conflict in the testimony touching the value of the improvements placed upon the premises described in the notice of possessory claim, but we think the evidence fully supports the contention of respondents that the improvements placed upon the premises by their predecessors in interest and those subsequently made thereon by respondents were sufficient to comply with the provisions of sections 4552-4555, supra.
Abandonment has been defined by the weight of authority to mean the voluntary relinquishment of possession of the premises by the owner with the intention of terminating the ownership, without vesting it in any other person. And in order that a claim of abandonment may be predicated on the acts of the owner of property in relinquishing his possession of the same, it is necessary that such acts should be absolute and unconditional, and also that they should have been done voluntarily; that is, without coercion or pressure of any kind.
In order to justify the conclusion that there has been abandonment of a homestead acquired under the provisions of said sections, there must be some clear, unmistakable, affirmative act or series of acts indicating a purpose to repudiate ownership and right to possession. The abandonment of rights in land does not occur if the person in possession leaves it with the intention of returning. The owner of property, by leaving an agent in charge after he ceases to occupy the premises in person, conclusively rebuts any presumption of abandonment arising from the fact that he ceases to occupy or reside thereon.
Where it appears that a person has gone into possession of a tract of unsurveyed government land and has fully complied with sections 4552-4555, supra, providing for the settlement upon, and occupancy of, the public domain of the United States in this state, such possession and compliance with the law being shown, abandonment thereof must be made to appear clearly and conclusively by the party relying on it to defeat the right of the claimant to have his possession
It is apparent from the record in this case, all the way through, that respondent Maude E. Goldensmith never intended to abandon the premises, but, on the contrary, intended to return, and that her absence was due solely to the fact that she was dependent upon her own labor for her support and the maintenance of her son. It further appears that she visited the property upon numerous occasions; that she protected it by having the doors properly secured, the windows boarded up, the fence repaired; that such household effects as she owned and other property were left in the building; and that she exercised during her temporary absence rights of ownership and control over the premises. Prom her explanation of her temporary absence, her good faith and intention of returning are obvious.
What constitutes abandonment is a question of intent to be gathered from the facts; and where there is a substantial conflict in the testimony involving the question of abandonment, this court, under the well-established rule, will not disturb the judgment of the trial court on appeal.
Counsel for appellant insist that their motion for nonsuit should have been sustained, and that the evidence was not sufficient to support the findings of fact or the decree based thereon. It is a well-settled rule that a motion for nonsuit admits the truth of plaintiff’s evidence and every inference of fact that can be legitimately drawn therefrom, and the evidence must be interpreted most strongly against defendant. (Pilmer v. Boise Traction Co., 14 Ida. 327, 125 Am. St. 161, 94 Pac. 432, 15 L. R. A., N. S., 254; Colvin & Rinard v. Lyons, 15 Ida. 180, 96 Pac. 572; McDaniel v. Moore, 19 Ida. 43, 112 Pac. 317.) In view of this rule, and, in the absence of any evidence offered on behalf of the appellant, we are of the opinion that the evidence was amply sufficient to warrant the court in making its findings in favor of respondent and that the evidence was not insufficient to support the decree.
From our examination of the record we find no error in the action of the trial court in denying appellant’s motion for a nonsuit, and we are satisfied that the evidence offered and admitted is sufficient to sustain the decree and that the decree was not contrary to law. The judgment of the trial court is affirmed and costs awarded to respondents.