Brooks v. Warren

• Decision Date: 02 February 1887
• Citation: 13 P. 175,5 Utah 118
• Court: Utah Supreme Court
• Parties: JOHN BROOKS, APPELLANT, v. ELIHU WARREN, RESPONDENT

13 P. 175

5 Utah 118

JOHN BROOKS, APPELLANT, v. ELIHU WARREN, RESPONDENT

Supreme Court of Utah

February 2, 1887

APPEAL from a judgment of the district court of the first district. The opinion states the facts.

Judgment of the district court affirmed, with costs.

Messrs Sheeks & Rawlins, for appellant.

Mr James N. Kimball and Mr. A. R. Heywood, for respondent.

BOREMAN J. ZANE, C. J., and HENDERSON, J., concurred.

OPINION

BOREMAN, J.:

This is an action of forcible entry and detainer, instituted before a justice of the peace, where judgment was rendered for the plaintiff, (appellant,) and thence the case was appealed by the defendant (respondent) to the district court. In the district court the alleged unlawful detainer was waived, no evidence being introduced in support of it. The hearing was before the court, a jury having been waived. The judgment being given for the defendant, the plaintiff appealed therefrom to this court.

The statute governing this class of cases is as follows: "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 circumstances of terror enters upon or into any real property; or (2) who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession." Code Civil Proc., sec. 1033; Laws Utah 1884, p. 334. Upon the trial in such cases, the "plaintiff shall only be required to show, in addition to the forcible entry, * * * that he was peaceably in the actual possession at the time of the forcible entry." Code Civil Proc., sec. 1046; Laws Utah 1884, p. 338.

The questions for our consideration, therefore, are whether the entry was forcible, and whether appellant was at that time "peaceably in the actual possession." If both of these appear, he is entitled to a recovery but it is otherwise if he fail in either.

The findings of the court are against the appellant on both of these points; and the findings of the court, like the verdict of a jury, will not be disturbed by the appellate court unless the preponderance of the evidence against the findings is so apparent and marked that the court can have no hesitancy in declaring that the particular findings under review are against the evidence: Walker v. Popper, 2 Utah 281; Dewey v. Snyder, Id. 244; Harrington v. Chambers, 3 Utah 94, 1 P. 362; Chamberlain v. Raymond, 3 Utah 117, 1 P. 850; Trenor v. Central Pac. R. Co.,50 Cal. 222.

The evidence in the case is quite meager, and all of it came from the witnesses for the appellant; the respondent introducing no evidence except upon the question of restoring defendant to the possession. The evidence in regard to the possession of the house and premises at and prior to the time that appellant, Brooks, came there, is substantially as follows: The Promontory Stock Company was the party for and under whom appellant was acting and Adams and Schilling were the parties for and under whom respondent was acting. John W. Taylor, one of the Promontory Stock Company, testified that his judgment was that Adams and Schilling have had their cattle on that land for over a year; that he knew Warren, and had heard that he was foreman for Adams and Schilling; that Adams told him that they owned the cabin, and used it. He also testified that Warren was "simply a squatter." He said, further, that about the house there was no inclosure, but there was a fence around the stacks and the corral at the sheds; that there was a fence running down from the mountain, nearly to the lake, a distance of 100 or 150 rods; that some distance north of the house there was a gate, and there was a corral adjoining the sheds; that hay was stacked at the north and west of the house; that on the south side, next the house, there was a fence, and there was a fence running to the mountains, so steep that cattle cannot cross it, and it would shut off all cattle south of the promontory, and it encloses land; that no one lived in the house when he went there with Brooks, the house being unoccupied, and the gate and door were open, and he drove in and up to the house. He saw a box and some loose hay in the house. He had been there twice before that time--once in October, 1885, when the house was unoccupied, and the gate and door open; and again in March, 1886, when he saw two little girls there. John Dean, witness for appellant, testified that Warren claimed the house, and that he had built it, and said something about its being unfair for others to go in the house; and, from what Warren said at that time, he was led to believe that he had the best right to the premises; that he took Brooks down there when he went into possession, the first of September, and they found in the house a milkpan, a bake-oven, and some baled hay, and there was a fence around the stack, and quite a quantity of hay fenced in; and there was a kind of shed, too. He said that Warren claimed to have built the house, and claimed the hay in the house; that he had known Warren always, and that Warren had been attending to Adams and Schilling's stock for a few years, at Promontory.

This then, was the condition of the property when Taylor, Dean, and Brooks went there, and Brooks was put into possession by Taylor. The object of placing Brooks in possession was to hold it for the Promontory Stock Company, and Dean was sent there to help him hold possession. The house was not occupied by any one being in it--no person was there, but there was some personal property in the house, and outside of it there were corrals, shed, hay-stacks, and a large amount of fences. The only witness testifying to have visited the premises prior to the time that Brooks was put into possession stated that he saw children there on the latter of his only two...