Alaska Development Co. v. Brannan

• Decision Date: 05 March 1929
• Docket Number: 1519
• Citation: 40 Wyo. 106,275 P. 115
• Parties: ALASKA DEVELOPMENT CO. v. BRANNAN [*]
• Court: Wyoming Supreme Court

275 P. 115

40 Wyo. 106

ALASKA DEVELOPMENT CO. v. BRANNAN ^[*]

No. 1519

Supreme Court of Wyoming

March 5, 1929

APPEAL from District Court, Natrona County; CYRUS O. BROWN, Judge.

Action by the Alaska Development Company against Clyde Brannan. Judgment for defendant, and plaintiff appeals.

Affirmed.

S.E Phelps, for appellant.

The trial court erred in permitting defendant to file his fourth amended answer at the opening of the trial, over plaintiff's objections; the amended pleading was not permissible under Section 5707 C. S., as it changed the nature of the defense. Finley v. Pew, 28 Wyo. 342. It was unauthorized by 5712 C. S., since it set up a new defense. 31 Cyc. 508; Reader v. Farriss, (Okla.) 153 P. 678; 21 En. Pl. & Pr. 18; Rogers v. Hodgson (Kas.) 26 P. 732; Bank v. Sorrenson, 30 Wyo 136; Schleier v. Bonella, (Colo.) 214 P. 535; Anderson v. Groesbeck, (Colo.) 55 P. 1086; Oil Co. v. Oliver, (Okla.) 232 P. 942; Grover v. Cash, (Utah) 253 P. 676; Allen v. City, (Ia.) 87 N.W. 743; Anderson v. Englehart, 18 Wyo. 409; Weaver v. Richardson, 21 Wyo. 343. The court erred in denying plaintiff's right to demur to said amended pleading. 5657 C. S. Discretion should be exercised so as to prevent injury. Collins v. Stanley, 15 Wyo. 282. The court erred in denying plaintiff's motion to strike portions of the amended answer. The court erred in excluding evidence that Young was agent for New York Oil Company. The court erred in dismissing plaintiff's action. State courts have jurisdiction of controversies relating to the possession of lands, where title remains in the government. Bank v. Steinhoff, 11 Wyo. 290; Marquez v. Frisbie, 101 U.S. 473. Defendant was not in possession. Stone v. Snell, (Nebr.) 94 N.W. 525. Plaintiff's possession of the premises and personal property thereon, was sufficient to sustain an action for trespass. Bader v. Co., 28 Wyo. 191; Noble & Carmody v. Hudson, 20 Wyo. 227, 32 Cyc. 139; Sunderland v. Bishop, (Okla.) 227 P. 398. The court was plainly influenced by passion or prejudice against the plaintiff. Ketchum v. Davis, 3 Wyo. 164; Marshall v. Rugg, 6 Wyo. 270; Kester v. Wagner, 22 Wyo. 512. The court erred in receiving the evidence of witness Winter. The court erred in receiving documentary evidence at variance with the pleadings, and various exhibits offered by the defendant. The judgment is not sustained by sufficient evidence. Plaintiff was entitled to the possession of the premises as against defendant. 32 Cyc. 185; Forde v. Libby, 22 Wyo. 464; Whiting v. Straup, 17 Wyo. 1. Where the court has jurisdiction of real estate, and personal property forms part of the subject matter in dispute, equity will protect it. 32 C. J. 119. Plaintiff did not have an adequate remedy at law. Deskins v. Rogers, (Okla.) 180 P. 691. Equity will not permit one out of possession to wrest possession of property from a plaintiff, and then be heard to say that plaintiff must resort to an action at law for possession. 32 C. J. 60; Dunker v. Club, (Calif.) 92 P. 502; Meakim v. Ludwig, (Wash.) 169 P. 24. An action may be maintained for injunctive relief alone. Land Co. v. Hoffman, 28 Wyo. 183; City Co. v. Casper, 28 Wyo. 452. Where one party rescinds a contract, and the other does not object, the rescission is mutual. Barquin v. Oil Co., 28 Wyo. 164. And new rights may not be created by criminal acts. Wettlin v. Jones, 32 Wyo. 446. A precedent condition requires literal compliance. 13 C. J. 630; Frank v. Stratford-Handcock, 13 Wyo. 37; Oil Co. v. Cruse, (Okla.) 162 P. 716; Foxley v. Rich, (Utah) 99 P. 666. Defendants acts of trespass were without justification in law or fact. Allen v. Lewis, 26 Wyo. 85. Defendants notice of forfeiture was incompetent to prove his possession. Hunt v. Laramie, 26 Wyo. 160; Oil Co. v. Cross, 31 Wyo. 9; Donaldson v. Oil Co., (Okla.) 232 P. 821. Defendant occupies an inconsistent position in claiming first, under an assignment, and then under a forfeiture. Petroleum Co. v. Colford, 235 S.W. 710. The record shows plaintiff's possession at the time of the acts of trespass by the defendants, and not being contradicted must be accepted as true. Carter Oil Co. v. Co., (Wyo.) 233 P. 960. State courts have jurisdiction to determine rights of possession of lands even where title is in the government. Railway Co. v. McComas, 250 U.S. 387; Isaacs v. DeHorn, 11 Fed. (2nd) 943; Caldwell v. Bush, 6 Wyo. 342; Delles v. Bank, 7 Wyo. 66; Bank v. Steinhoff, supra. The decision of the trial court is in conflict with the rule in Sparks v. Mount, 29 Wyo. 1; Smith v. McCullough, 285 F. 698. Courts of equity must be guided by established rules and principles. 21 C. J. 22, 10 R. C. L. 262; Wilson v. Wilson, (Mont.) 264 P. 679, and protect property without hesitation. Chesny v. Co., 34 Wyo. 378. The judgment is against the weight of the evidence. Boburg v. Prahl, 3 Wyo. 325; Marshall v. Rugg, 6 Wyo. 270; Sneider v. Co. , 28 Wyo. 40; and cases cited.

Curran & Cobb, for respondent.

The situation developed by the evidence in this case was just the opposite of that developed in the case of Sparks v. Mount, 29 Wyo. 1. Sparks had not executed an assignment and there was no question in that case of a violation, or breach of performance of a contract, as we have here. The trial court rendered its decision on conflicting evidence, and it should not be disturbed. Edwards v. Willson, 30 Wyo. 275. This rule is applicable in equity cases. 6 Wyo. 468; 7 Wyo. 401; 13 Wyo. 244; 26 Wyo. 495. This court will reverse only for prejudicial error appearing on the record. 24 Wyo. 18. The title to property cannot be tried in equity. 17 L.Ed. 333; 15 L.Ed. 393. Where there is a doubt of title, equity will not interfere. 55 F. 566. Until patent issues, title to public lands remain in the United States, and state courts are without jurisdiction until title passes. 41 L. D. 634; 50 L. D. 322; 297 F. 272; 285 F. 181; Hodgson v. Co., 297 F. 269. The judgment should be affirmed.

S.E. Phelps, in reply.

Reference is made in defendant's brief to findings made by the trial court; the trial court made no findings whatever, except such as are inferred from its judgment dismissing the case, and holding that the court did not have jurisdiction. The letter of the judge to the attorneys, is not the findings of the court. Stevens v. Laub, et al., (Wyo.) 265 P. 453. This action was to restrain defendant's encroachments upon plaintiff's possession, and the court decided that it did not have jurisdiction to grant relief, which was prejudicial error against plaintiff.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This case is before us upon direct appeal from a judgment of the District Court of Natrona County entered after a trial to the court of issues, presented by pleadings summarized as follows:

The petition of the plaintiff, appellant here, after averring its corporate existence, its principal business place at Casper and its occupation in the production of oil and gas, alleges that on October 1, 1925, and since that date it was and is entitled to "and is in the possession of" certain described real property in Natrona County, Wyoming; that it "is the owner of and was and now is in possession of, and entitled to the possession of" certain buildings on said land and certain valuable personal property originally located thereon suitable for drilling oil and gas wells; that on November 6, 1925, the defendant, respondent here, with other men, came upon the premises aforesaid, engaged in an altercation with plaintiff's employee in charge of said premises regarding the gas line there situated, injured the employee and forbade his return to the property, all without cause or right; that between November 8th and 20th, 1925, defendant committed other trespasses in entering said land and into plaintiff's buildings, taking and moving certain drilling equipment to a place upon this land where defendant was preparing to drill a well; that on November 20th, 1925, defendant's agents severed a gas line to its buildings from a gas well, previously sunk upon the land by plaintiff, so as to deprive plaintiff of the use thereof; that since November 30, 1925, defendant has been using gas and water from said well and been engaged in the drilling of other wells upon said premises without plaintiff's consent and without right, and despite its directions to defendant to keep off of the land and not to use the personal property aforesaid; that on December 6, 1925, plaintiff served a written notice upon defendant containing these prohibitions; that defendant will continue to enter upon the premises and drill wells unless restrained; that defendant has no property in excess of the legal exemptions and several unsatisfied judgments are outstanding against him; that defendant's acts cast a cloud upon the right and title to the property which it is endeavoring to sell; that defendant is without financial means to drill successfully and case the well thus undertaken which work will be done so as to be a great detriment and cause irreparable damage to these premises and to plaintiff, and to other premises in the field, by allowing water to get into the gas or oil strata; that this threatened damage will involve plaintiff in contentions with its lessor and with the United States, the original lessor of the land; that no pecuniary damages can be assessed and collected from defendant and those cooperating with him for the injuries sustained by plaintiff through these acts of defendant; that on November 9, 1925, a criminal complaint was filed before a justice of the peace of Natrona County, charging defendant and others with breaking into plaintiff's buildings on these premises, and after a hearing the charge was dismissed; that plaintiff is unable to preserve...