Bentley v. Jenne

Citation236 P. 509,33 Wyo. 1
Decision Date19 May 1925
Docket Number1174
PartiesBENTLEY ET AL v. JENNE [*]
CourtUnited States State Supreme Court of Wyoming

APPEAL from District Court, Campbell County; JAMES H. BURGESS Judge.

Suit by John J. Bentley, as administrator of the estate of Gilbert De Saumarez Hamilton, deceased and another, against Lew Jenne. There was judgment for plaintiff, and defendant appeals.

Judgment affirmed.

Diefenderfer & Wakeman for appellant.

This is an action of ejectment, 19 C. J. 1028-1033. It is not one of forcible entry and detainer; no element of equity is involved; by supplemental petition, plaintiffs claim under a resurvey; this cannot be done; Lessee v. Spencer, 16 L. ed. 97; Shepley v. Cowan, 23 L. ed. 424; Stark v. Starr, 18 L. ed. 925; since patent issued under original survey; Barringer v. Davis, 120 N.W 69; Cragin v. Powell, 32 L. ed. 566. Original corners, if found, are conclusive whether correctly located or not, 9 C. J. 164. A resurvey merely traces original lines; Bayhouse v. Urquides, 105 P. 1066; Steel v Co., 106 U.S. 447; Weaver v. Howatt, 152 P. 928; Trotter v. Stayton, (Ore.) 68 P. 3. Plaintiffs must be held to their original petition, 32 Cyc. 805; Burt v. Busch, 46 N.W. 790. Plaintiff must prove title as alleged, 19 C. J. 1151. In ejectment involving boundary dispute burden is on plaintiff to show defendants occupancy extending over real lines; Harper v. Anderson, 43 S.E. 58. Equities cannot be inquired into as only legal rights are involved, 15 C. J. 1032; Rome v. Beckett, 30 Ind. 154; Powell v. Pierce, 134 N.W. 447. Descriptions in patent controls, Gazzam v. Phillips, 15 L. ed. 958; Mathews v. Nefsy, (Wyo.) 81 P. 306. Plaintiff must prove identity of land as to its inclusions and boundaries, 19 C. J. 1153. A trespasser upon public lands cannot prevent homestead entry; Whittaker v. Pendola, 20 P. 680, 32 Cyc. 811. Homestead entry initiates adverse possession, 87 A. S. R. 342; survey cannot be collaterally attacked, 100 C. C. A. 105. Occupation confers no rights against the government, 32 Cyc. 819; 19 C. J. 1050; Burgess v. Gray, 16 How. 48. Court cannot correct erroneous location of corners; Goroski v. Tawney, 141 N.W. 102; Murphy v. Tanner, 100 C. C. A. 131. No resurvey may impair bona fide rights, 5 U.S.C. S. 5842. In ejectment legal title prevails, Anderson v. Rasmussen, 5 Wyo. 44; equity alone cannot relieve against erroneous deed; Prentice v. Stearns, 28 L. ed. 1059. A judgment without the issues is void; Metcalf v. Hart, 3 Wyo. 513; Newcastle v. Smith, (Wyo.) 205 P. 302.

Metz, Sackett & Metz for respondents.

The Code has abolished distinctions between actions at law and suits in equity, 5555 C. S.; all fictions are abolished, 5647 C. S. The action is for possession and damage; defendants occupancy was a mere trespass conferring no rights; Sparks v. Mount, (Wyo.) 207 P. 1099. A homestead entry cannot be initiated upon lands in the possession of another claiming it in good faith, 4674-76 C. S. Gauthier v. Morrison, 232 U.S. 452; Lyle v. Patterson, 228 U.S. 211; Denee v. Ankeny, 256 U.S. 208; Atherton v. Fowler, 96 U.S. 516; Hosmer v. Wallace, 97 U.S. 579; defendants general denial admits his possession; Iba v. Assn., 5 Wyo. 355; Anderson v. Rasmussen, 5 Wyo. 44. A resurvey must follow original boundaries and monuments, 32 Cyc. 805; the Court's decision is in accordance with departmental findings and rulings.

Diefenderfer & Wakeman in reply.

Respondents in their brief, attempt to show that the petition states two causes of action, one legal and one equitable, which must stand in the absence of a motion to separately state and number; no equitable cause of action is pleaded, merely an ejectment action. Under 6236-6237 C. S. plaintiffs are not entitled to equitable relief; Allen v. Houn, (Wyo.) 219 P. 573. The procedure in cases of disputed boundaries is prescribed by statutes, 1546 C. S. The Fox survey was an attempt to locate a description of land that did not exist.

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

OPINION

BLUME, Justice.

This suit is in the nature of an action for the recovery of real property, brought originally by Gilbert DeSaumarez Hamilton, as plaintiff, against Lew Jenne, as defendant. During the pendency of the case in the court below, Hamilton died, and John J. Bentley, administrator of his estate and Catherine Esdaile, his only heir at law, were substituted as plaintiffs. Judgment was rendered in favor of said plaintiffs and against the defendant, from which said defendant, appellant herein, has appealed.

The facts, somewhat abbreviated, are substantially as follows About 1881 Drew Smith and Tom Smith settled upon 320 acres of land, hereinafter described, and constructed cabins, put up some pole fences and made other improvements thereon. They were the first settlers in that vicinity. They sold their possessory right and improvements to said Hamilton and one Malcolm Moncrieffe about 1885, and these two purchasers preempted said land and obtained patents from the United States Government. The patent to Hamilton is dated November 16, 1891, for the E 1/2 of the NW 1/4 and S 1/2 of the NE 1/4 of Section 22, Township 57 North of Range 74 West of the 6th P. M., containing 160 acres. The patent to Malcolm Moncreiffe is dated the same day and is for the NE 1/4 of the SE 1/4 of Section 22, and W 1/2 of the SW 1/4 and the SE 1/4 of the SW 1/4 of Section 23, Township 57 North of Range 74 West of the 6th P. M., containing 160 acres. Moncreiffe sold said land to said Hamilton by deed executed on October 19, 1897. Prior to the time that Hamilton and Moncreiffe filed upon said land, a survey thereof was made, the starting point of which was an apparently well known government monument about eight miles east of said land on the 9th Guide Meridian, which meridian runs between Ranges 72 and 73 North, and the survey so made corresponded with a previous survey that had theretofore been made by the Smith brothers. Hamilton and Moncreiffe erected corrals, sheds and dwelling houses upon said land and made other improvements thereon worth from $ 2,000 to $ 4,000. The lands upon which the improvements aforesaid were made are located along what is called Bitter Creek, and were enclosed by a fence, which, however, did not quite correspond to the governmental descriptions upon which the parties had supposedly filed. On the westerly side, the fence enclosed also other land, while on the easterly side some of the land supposedly filed on was not enclosed by the fence. This latter fact is, however, immaterial, for the reason that the appellant Jenne claims no lands lying outside of such fence on the east. Moncreiffe and Hamilton resided upon and cultivated their respective tracts of land until Moncreiffe sold out to Hamilton in 1897. After that time Hamilton resided upon, cultivated and claimed all of said 320 acres of land. During part of that time he resided near Sheridan, Wyoming, but was in possession of said property through men working for and under him. During 1912 and part of 1913 he was in England and upon his return found that Lew Jenne, the appellant in this case, had, about September 23, 1913, gone into possession of a large portion of his property, including most of his buildings, appellant claiming the property under a patent issued on August 27, 1913, to one Grover C. Swartz, for the W 1/2 of the NW 1/4; SE 1/4 of the NW 1/4 and the NE 1/4 of the SW 1/4 of Section 23, Township 57 North, Range 74 West of the 6th P. M., containing 160 acres. Swartz conveyed this land on September 22, 1913 to William Coffman and Lew Jenne, and William Coffman in turn conveyed his undivided one-half interest to Lew Jenne on September 23, 1913. The theory of appellant is that Hamilton's land is not located where the latter thought it was, but that the patent issued to Grover C. Swartz covers, by actual location upon the ground, the land of which appellant took possession. This claim is based upon a survey made in 1908 by one Charles P. Berry, according to which Hamilton's land is about one-half mile west, and about the same distance south of where it had been supposed to be. It seems that one Beason, when it was thought that a mistake had been discovered, filed on part of the land theretofore occupied and claimed by Hamilton, but such filing was subsequently cancelled. Appellant claims that about the same time Hamilton gave his consent that Grover C. Swartz might make a homestead filing, for which the patent to him was subsequently issued, in order to cover most of Hamilton's land not covered by the Beason filing. While there is testimony in the record tending to show such consent, Hamilton denied it, and the court evidently believed the latter. Swartz was at that time in the employ of Hamilton and continued in such employ until shortly before he received his patent above mentioned. He resided upon the land now claimed by appellant, as Hamilton's employee, did not cultivate the land and made no improvements upon it except only what he was asked to do as such employee, and at Hamilton's expense. The trial court found that Hamilton's possession of said land was a well known fact; that appellant took possession of 173 acres of Hamilton's land, including the dwelling house, sheds, corrals, meadows, irrigation system, fencing, artesian well, pump, tank and other improvements thereon during the absence of Hamilton and without the consent or permission of said Hamilton, and that he then knew and had known for many years that said property was claimed by Hamilton. These findings are sustained by ample evidence and must be accepted as true. Subsequent to the commencement of the action herein, a resurvey of the township in question was made by the authority of the government of the United States and the township was platted into a...

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13 cases
  • Huber v. Delong
    • United States
    • Wyoming Supreme Court
    • 29 Mayo 1939
    ... ... who could show a better one. Durrell v. Abbott, 6 ... Wyo. 265. Pregal v. Stickney, 34 Wyo. 324. Allen ... v. Houn, 30 Wyo. 186. Bentley v. Jenne, 33 Wyo ... 1. Both parties claim title from the same source. The inquiry ... is whether either has title from that source. Hecht v ... ...
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    ... ... 530 ... Plaintiff's only remedy is in equity. Hardin v ... Card, 17 Wyo. 210; 34 C. J. 438; Bentley v ... Jenne, 33 Wyo. 1; Pregal v. Stickney, 34 Wyo ... 324. When a party alters a deed after its execution and ... delivery, as was done in ... ...
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    ...adverse possession, such title became vested and was good against the world, including the predecessors of the defendants. Bentley v. Jenne, 33 Wyo. 1, 236 P. 509, 512; Stryker v. Rasch, 57 Wyo. 34, 112 P.2d 570, 573, 576, 136 A.L.R. 770, rehearing denied 113 P.2d 963. 'Tacking' could not a......
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