33 Mont. 21 | Mont. | 1905
delivered the opinion of the court.
Aetion to obtain a judgment for the restitution of the possession of the south half of the southwest quarter and the northeast quarter of the southwest quarter of section 30, township 24 north, of range 60 east, situate in Dawson county, and for damages for a forcible entry thereon by the defendant. The plaintiff had verdict and judgment. The defendant has appealed from the judgment and an order denying a new trial.
Rejecting as surplusage the averments referred to as inconsistent, the pleading alleges, in substance, that the plaintiff was in the spring of 1901 in actual possession of certain described lands, engaged in cultivating them as a homestead settlement, and that at that time the defendant forcibly and without right entered thereon, and by force and arms ejected plaintiff therefrom. Section 2080, supra, declares: “Every person is guilty of a forcible entry who either: (1) By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property or mining claim; or (2) who, after entering peaceably upon real property or mining claim, turns out by force, threats or menacing conduct, the party in possession.” The allegations of the complaint sufficiently set forth the elements of the cause of action provided for in the first subdivision of the section. The purpose of the provisions of the Code contained in the chapter in which this section is found (Chapter IV, Part III, Title III, Code of Civil Procedure) is to furnish a summary remedy to obtain possession of real property, and to pre
From even a casual examination of these sections it. is apparent that section 2080 does not contemplate an investigation of the title or right of possession. (Sheehy v. Flaherty, supra, and cases cited.) Indeed, the issue of title or right of possession may not be made in an action under either section 2080 or 2081, unless it be that section 2092 of the Code of Civil Procedure, which declares what the parties may show, permits the issue of right of possession under some circumstances in actions under section 2081. Section 2092 was amended, when brought forward into the Code from the Compiled Statutes of 1887 (Compiled Statutes 1887, Division 1, sec. 723), by the substitution of the words “forcible detainer” for the words “unlawful holding over”; but how far, if at all, the general rule stated in Sheehy v. Flaherty, supra, was changed by the amendment, need not be discussed, as the question does not arise in this ease. It is sufficient to say that such an issue cannot arise or be tried in the case at bar under the theory adopted by the court. „
But while the pleading is sufficient, in our opinion the evidence does not support the verdict. The cause of action alleged is one arising under subdivision 1 of section 2080, while the evidence tends to show, if it supports any cause of action at all, one arising under the second subdivision. The lands in controversy were, at the time the alleged forcible entry was committed, unsurveyed public lands. They were inclosed by the plaintiff, with several hundred acres of other public land, by a common fence. The dwelling and outhouses of the plaintiff
Now, assuming that the various acts of plaintiff in seeding the ground and cutting and stacking the hay and inclosing it in corrals, and thereafter feeding it to his cattle at the corrals, were sufficient to show actual possession, the facts detailed do not tend to support the allegations of the complaint, but rather
Complaint is made that the court erred in permitting the witness Meadors to testify over defendant’s objections as to declarations made by the plaintiff in 1901 as to what lands he claimed or intended to claim as his homestead. The witness was permitted to state that at that time, being engaged in trying to fix the lines prior to the official survey, the plaintiff stated that he claimed one hundred and sixty acres, and pointed out to him where he desired to take it. The witness further stated, over objection, that the lands pointed out were those in dispute. If this evidence tended to establish any fact at all, it tended to show a claim of homestead right (that is, inchoate title to the disputed land), and not actual possession — a fact wholly immaterial, for title could not become a material issue. Besides, they were self-serving declarations of intention, which would not have been competent even upon the issue of title. The admission of this evidence was error.
Complaint is also made, that the court erred in certain instructions submitted to the jury, and in refusing to submit certain others requested by the defendant. What has already been said as to the nature of the action and the issues properly involved renders it unnecessary to discuss the instructions. On another trial the court will doubtless find no difficulty in stating the law applicable to the case. Most of the criticisms made of the instructions submitted are verbal and without merit.
It is said that the verdict is not responsive to the issues It is as follows: “We, the jury, find for the plaintiff, and that he is entitled to the possession of the east one-half of the southwest % °f See. 30, Tp. 24 N., R. 60, and that he recover damages against the defendant in the sum of $285.” Rejecting as surplusage the clause, “and that he is entitled to the possession,” etc., it would be entirely responsive to the issues presented by the pleadings. The difficulty with it, however, is that the evidence shows that the only dispute is as to the land it describes, while, as a matter of fact, the complaint charges a forcible entry also upon the southwest quarter of the southwest quarter of section 30. As it stands, it embodies a finding upon an issue that was not in the case, and, if this be omitted, it would authorize a judgment for restitution of land not in dispute. It should, in form and substance, have found that the defendant was guilty of a forcible entry upon the portion of the land described, and fixed the amount of damages. On another trial this error may be avoided by submitting a proper form, enabling the jury to respond in their finding to the issue actually tried.
Prior to the trial the court, on motion of plaintiff, struck out a portion of defendant’s answer in which he alleged certain acts of plaintiff occurring subsequent to the alleged forcible entry as an estoppel. At the same time the court also struck out of the answer, oh motion, most of a number of items set up in a separate count as a counterclaim for damages. This action of the court is assigned as error. We think the court was correct in both instances. The defendant could not be
For the reasons stated, the judgment and order are reversed, and the cause is remanded for a new trial.
Reversed and remanded.