Denney v. Arritola

• Decision Date: 21 June 1918
• Parties: ABRAHAM DENNEY, Respondent, v. JUAN ARRITOLA et al., Appellants
• Court: Idaho Supreme Court

174 P. 135

31 Idaho 428

ABRAHAM DENNEY, Respondent, v. JUAN ARRITOLA et al., Appellants

Supreme Court of Idaho

June 21, 1918

ANIMALS-TWO-MILE LIMIT LAW-POSSESSORY CLAIM-EVIDENCE.

1. It is incumbent upon one who claims damages for a violation of Rev. Codes, sec. 1217, commonly known as the "two-mile limit law," to bring himself within the terms of the statute.

2. Where the alleged trespass consists in herding or grazing sheep within two miles of the dwelling-house of the owner or owners of a possessory claim, mere naked possession of a dwelling-house by plaintiff will not support the action, but it must be shown that such dwelling-house is that of the owner or owners of the possessory claim.

3. The term "owner of such possessory claim," as used in the two-mile limit law, means one who is in possession of land by reason of some title thereto, or who by reason of his settlement obtained some right, or one who can maintain his claim by reason of having complied with the provisions of secs. 4552-4556, Rev. Codes.

APPEAL from the District Court of the Third Judicial District, for Owyhee County. Hon. Charles P. McCarthy, Judge.

Action to recover damages under "two-mile limit law." Judgment for plaintiff. Reversed.

Judgment reversed. Costs awarded to appellants.

N Eugene Brasie, for Appellants.

The supposed dwelling of the respondent is situated upon land which had been segregated from the public domain by proclamation of the President prior to the placing of said dwelling thereon. Of this the court would take judicial notice under sec. 5950, Rev. Codes. The said lands are subject to distribution under the act of July 5, 1884 (23 Stat. 103; 6 F. Stats. Ann. 423), and no entry of the same can be made. Of this fact respondent was aware, as shown by his own testimony, nor can any preference right of entry or purchase be acquired in said lands. (Walsh v. Ford, 1 Alaska, 146; United States v. Fitzgerald, 15 Pet. (U.S.) 407, 10 L.Ed. 785, 790.)

Elliott & Healy and C. E. Melvin, for Respondent.

Actual possession is sufficient as against one who does not connect himself with the title or who cannot show a better right. (Northern P. R. Co. v. Lewis, 51 F. 658, 2 C. C. A 446; Gulf, C. & S. F. Ry. Co. v. Johnson, 54 F. 474 4 C. C. A. 447; City of Oklahoma City v. Hill, 6 Okla. 114, 50 P. 242, 243.)

Possession of lands of the United States is conclusive evidence of title against all the world except the paramount owner, or as against someone connection himself with the paramount title. (Gragg v. Cooper, 150 Cal. 584, 89 P. 346; Rourke v. McNally, 98 Cal. 291, 33 P. 62; Gonder v. Miller, 21 Nev. 180, 27 P. 333; Brown v. Killabrew, 21 Nev. 437, 33 P. 865; Tidwell v. Chiricahua Cattle Co., 5 Ariz. 352, 53 P. 192; Neal v. Kayser, 12 Ariz. 118, 100 P. 439; Feirbaugh v. Masterson, 1 Idaho 135; People v. Maxon, 1 Idaho 330.)

This court in the case of Sweet v. Ballentyne, 8 Idaho 431, 69 P. 995, in sustaining the validity of the two-mile limit law, has held that the grazing of sheep within two miles of the dwelling of a settler constitutes a nuisance. The rule is well settled that one in possession of real estate may maintain an action on the case for damages for injury to his enjoyment, resulting from the creation of a nuisance on adjoining property, without proving title. (Brink v. Moeschl Edwards etc. Co., 142 Ky. 88, 133 S.W. 1147, 34 L. R. A., N. S., 560.)

In actions under the provisions of sec. 1217, Rev. Codes, and following, it is immaterial whether the plaintiff possesses his land absolutely and has title thereto, or whether he holds by mere naked possession. (Sifers v. Johnson, 7 Idaho 798, 97 Am. St. 271, 65 P. 709, 54 L. R. A., 785; Risse v. Collins, 12 Idaho 689, 87 P. 1006; Branca v. Ferrin, 10 Idaho 239, 77 P. 636.)

Possessory rights in lands belonging to the United States may be acquired in this state either by a compliance with sec. 4552, and following, or by actual occupation and settlement. (Maydole v. Watson, 7 Idaho 66, 60 P. 86; Cheney v. Minidoka County, 26 Idaho 471, 144 P. 343.)

RICE, J. Budge, C. J., and Morgan, J., concur.

OPINION

RICE, J.

This action was brought by Abraham Denney to recover damages under the "two-mile limit law." About seventeen years prior to the trial of the cause, Denney took possession of a certain tract of land located in Owyhee county, which land was at that time a portion of a military reservation. He inclosed the land with a fence. About five years thereafter, or about twelve years before the trial, he built a house and several corrals within the inclosure and used the same as a base from which he ranged his horses and cattle. The military reservation was subsequently abandoned. In the year 1909, the general land office notified the local land office at Boise that the abandoned military reservation was subject to disposition under the act of July 5, 1884, 23 Stats. at L. 103. It does not appear that Denney ever filed his notice and affidavit for possessory claim under Rev. Codes, secs. 4552-4556.

The statute under which this cause is prosecuted is Rev. Codes, sec. 1217, which reads as follows: "It is not lawful for any person owning or having charge of sheep to herd the same, or permit them to be herded, on the land or possessory claims of other persons, or to herd the same or permit them to graze within two miles of the dwelling-house of the owner or owners of such possessory claim."

This being a constructive trespass provided for by statute, it is incumbent upon the plaintiff to bring himself within the terms of the statute. It is not contended that the sheep were herded or grazed on lands occupied by respondent. The action is founded upon the allegation that the sheep were herded and permitted to graze within two miles of the dwelling-house of respondent as the owner of a possessory claim.

The question as to whether the house upon the claim was the dwelling-house of respondent was submitted to the jury under proper instructions. The jury found in favor of respondent. The evidence, though not conclusive, was sufficient to sustain the verdict in this respect.

It is necessary to determine, therefore, whether the inclosure of respondent was a possessory claim within the meaning of the statute. We find no statutory definition of the term "possessory claim."

In none of the numerous two-mile limit cases decided by ...