Eccles v. Union Pac. Coal Co.

• Decision Date: 17 March 1897
• Docket Number: 679
• Citation: Eccles v. Union Pac. Coal Co., 48 P. 148, 15 Utah 14 (Utah 1897)
• Court: Utah Supreme Court
• Parties: JOHN H. ECCLES, APPELLANT, v. UNION PACIFIC COAL CO., RESPONDENT

48 P. 148

15 Utah 14

JOHN H. ECCLES, APPELLANT, v. UNION PACIFIC COAL CO., RESPONDENT

No. 679

Supreme Court of Utah

March 17, 1897

Appeal from the Seventh judicial district court, Carbon county. Hon W. M. McCarty, Judge.

Action by John H. Eccles against the Union Pacific Coal Company and others to recover damages for forcible and unlawful detainer. There was a verdict for plaintiff, the amount of which the court declined to treble; and, from a judgment entered thereon, plaintiff appeals. Modified.

Case remanded.

Stephens & Smith, for appellant.

Williams Van Cott & Sutherland, for respondent.

MINER J. ZANE, C. J., concurs. BARTCH, J., dissenting.

OPINION

MINER, J.:

Plaintiff on the 17th day of August, 1891, made settlement under the homestead laws of the United States upon a part of the unoccupied domain in question in this case, duly obtained his certificate of entry from the receiver of the United States land office, and otherwise complied with the laws of the United States with reference thereto, and has been in possession of the same ever since, except 35 acres thereof, which the defendant, a corporation, has unlawfully, forcibly, and by threats, prevented the plaintiff from occupying; that on the 16th day of October, 1894, plaintiff recovered judgment against the defendant for the possession of said land, and for damages for the unlawful and forcible detention and forcible and unlawful entry thereof up to September 5, 1893; that said judgment remains in full force, and was not appealed from, but was satisfied by the payment of damages and costs; that demand has been made for the possession of said premises, and possession refused; that on February 1, 1896, peaceable possession of said land was delivered to the plaintiff. This action was brought under subdivision 1 of section 3787, and section 3801, Comp. Laws Utah 1888, to recover damages for the forcible and unlawful detention of said land, and for the rents, profits, and issues of the same, from the 5th day of September, 1893, to the 1st day of February, 1896. Plaintiff alleged and proved that said premises were forcibly detained by the defendant. In his complaint, the plaintiff asked for treble damages. On the trial, the jury rendered judgment in favor of the plaintiff, and against the defendant, for the unlawful and forcible detention of the premises, and assessed his damages therefor at the sum of $ 800. Thereupon counsel for plaintiff moved the court to treble the damages as found by the jury, and that judgment be entered in favor of the plaintiff in the sum of $ 2,400 and costs. The court overruled the motion, and declined to enter judgment for treble the amount of damages found, but entered judgment for the sum of $ 800, as found by the jury, to which plaintiff excepted. This refusal is the only error assigned in the record. The respondent did not appeal from either judgment, but is here asking an affirmance of the judgment, without trebling the amount of damages.

Subdivision 1, § 3787, Comp. Laws Utah 1888, reads as follows: "Every person is guilty of a forcible detainer who either: (1) by force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise." Section 3801, Comp. Laws Utah 1888, as amended by Sess. Laws 1892, p. 45, reads as follows: "If, upon the trial, the verdict of the jury, or if the case be tried without a jury, the finding of the court be in favor of the plaintiff and against the defendant, judgment shall be entered for the restitution of the premises, and if the proceedings be for unlawful detainer after neglect or failure to perform the conditions or covenants of the lease or agreement under which the property is held, or after default in the payment of rent, the judgment shall also declare the forfeiture of such lease or agreement. The jury or the court, if the proceeding be tried without a jury, shall also assess the damages occasioned to the plaintiff by any forcible entry, or by any forcible or unlawful detainer, and any amount found due the plaintiff by reason of the waste of the premises by the defendant during the tenancy, alleged in the complaint, and proved on the trial, and find the amount of any rent due, if the alleged unlawful detainer be after default in the payment of the rent; and the judgment shall be rendered against the defendant guilty of the forcible entry, or forcible unlawful detainer, for three times the amount of the damages thus assessed, and of the rent found due."

Under the act of congress of February 25, 1885 (St. U.S. 1884-85, p. 321, found in 1 Comp. Laws Utah 1888, 239), an inclosure of public land of the United States by any corporation, etc., is declared unlawful, and the inclosure of the same, without right, is forbidden and prohibited. This court held, in Taylor v. Buford, 8 Utah 113, 29 P. 880, that "one in possession of land which he holds in violation of the statutes can claim no damages under the estray law for trespassing animals," etc. In U.S. v. Buford, 8 Utah 173, 30 P. 433, this court held, when appellants had erected a fence entirely upon their own lands, which fence inclosed a portion of the public lands of the United States, that they had committed the offense of unlawfully inclosing public lands. Buford v. Houtz, 133 U.S. 320, 33 L.Ed. 618, 10 S.Ct. 305.

In Whittaker v. Pendola, (Cal.) 78 Cal. 296, 20 P. 680, the court said: "The defendant, not having shown any capacity in himself to acquire the government title to the demanded premises, nor any effort or intention to do so, stands in the position of a mere naked trespasser upon the public domain, with an inclosure erected and maintained contrary to the express provisions of the act of congress of February 24, 1885." "Plaintiff had a right to make his homestead entry on the whole tract, notwithstanding the possession of the defendant of the greater portion of it." The record shows that the jury found the issues in favor of the plaintiff, and against the defendant, and assessed the plaintiff's damages in the sum of $ 800, for the unlawful and forcible detention of the land described in the complaint. The defendant does not seek to set aside this judgment, but asks that the same be affirmed, but not trebled. Section 3799, Comp. Laws Utah 1888, provides that, "on the trial of any proceeding for any forcible entry or forcible detainer, the plaintiff shall only be required to show, in addition to the forcible entry or forcible detainer complained of, that he was peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession at the time of the forcible detainer."

The judgments rendered...