Eisele v. Oddie

• Decision Date: 21 March 1904
• Docket Number: 733.
• Citation: 128 F. 941
• Parties: EISELE v. ODDIE et al.
• Court: U.S. District Court — District of Nevada

128 F. 941

EISELE v. ODDIE et al.

No. 733.

United States Circuit Court, D. Nevada.

March 21, 1904

The amended complaint avers: That plaintiff is a citizen of California, having his domicile in Inyo county, in that state. That defendants are citizens and residents of the state of Nevada. That the matter in controversy in this action, exclusive of interest and costs, exceeds in value the sum of $2,000. That on the 20th of January, 1902, at Tonopah Nye county, this plaintiff was in the actual and peaceable possession of lot No. 11 in block D, a certain tent and other improvements upon said lot, together with certain household furniture, bed and bedding, $135 in the currency of the United States, a large amount of clothing, books, certain valuable papers, family photographs, canvas, and other personal property. That while he was so the owner and in possession of said property the defendants, 'with a multitude of people, riotously, with violence and strong hand, and by force of arms, wrongfully and unlawfully entered thereon, and assaulted plaintiff, and in a rude, angry, and threatening manner forcibly ejected plaintiff, and put him out of said land, and tenements, and threatened to expel plaintiff from the town of Tonopah,' to the damage of plaintiff in the sum of four thousand dollars. And for a separate and distinct cause of action alleges: That defendants, in the manner stated in the first count unlawfully entered on said lot, and appropriated to their own use and carried away and destroyed 10 bills of the currency of the United States of the value of $135; one tent, $45; and then enumerates divers small articles such as stools, chair, table, bedstead, clothing in a sack, books reading matter, etc.; 'a Bible, $200; family photographs $200; gold spectacles presented plaintiff by his mother, $100; confectionary receipts, $20; papers of plaintiff's home estate, $30; valuable private letters, $100; valuable documentary papers, $150-- the entire value of said personal property being $991; and that said Bible, family photographs, gold spectacles, confectionary receipts, papers of home estate, private letters, and documentary papers have no special value except to plaintiff, and plaintiff has thereby been damaged in the sum of nine hundred and ninety-one dollars'; and demands judgment against said defendants and each of them: '(1) For the sum of four thousand nine hundred and ninety-one dollars damages under the second cause of action stated.'

The defendants, in their amended answer, virtually deny each and every allegation in the complaint. They deny that at the time of the alleged entry plaintiff was in possession of the premises, or any part thereof, or that any articles of personal property, except the tent, were on said premises; deny that they or any of them, with a multitude of people or otherwise, except defendants Booth and Butler, entered said premises at all; and allege that one Mrs. McGregor was at said time the owner, and one Clay Peters the lessee, of said premises, and said Clay Peters was in the actual possession thereof; that defendants Booth and Butler entered said premises upon and by authority of said owner and lessee.

The testimony on behalf of the plaintiff tended to establish the allegations of the complaint, except as to his ownership of the property. A wide latitude was allowed both parties in the introduction of testimony. The record shows, among other things, that the plaintiff went upon the lot and moved into the tent June 15, 1901, and continuously remained in the possession thereof until the acts hereinafter stated occurred. About the 20th of December, 1901, Clay Peters, Dr. Hudgens, and others notified him that a committee had been organized to remove him from the premises, and informed him that he had better get off the lot. On January 7, 1902, plaintiff signed a paper, which reads as follows: 'Know all men by these presents, that I, Chris Eisele, hereby renounce all claim, right, or title of any kind or nature to the ground upon which the tent in which I am now living is situated in Tonopah, Nev., and I hereby agree and bind myself to vacate said ground within ten days from the date of this instrument. Dated this 7th day of January, 1902. C. C. Eisele. Witness: A. L. Hudgens. ' He did not leave at the time stated. He gave the reasons why he did not leave and said, 'I did agree to go when a man put a shotgun under my nose. ' About January 17th he had a talk with the defendant Oddie, and told him he would leave the ground, as he had heard that the committee was going to pull his tent down. On the 18th he moved some wood and provisions, stove, blankets, and some clothing. On the 19th he was fixing up a dug-out to go into. He slept at the dug-out on the 18th and 19th. He further testifies that all the things mentioned in his complaint were on the lot January 20th; that the remonstrated. Forcible and threatening words were used by some of the defendants. Plaintiff went away, got his dinner, returned, and 'saw from the looks of things they were going to destroy the tent. ' He remonstrated, and said the tent could be removed without breaking it. The defendant Booth had a shotgun, and informed plaintiff that he had better get away, or it would be worse for him. Plaintiff called on Oddie to 'stop this,' and his request was met by laughter. There were a number of people present. The defendants put a rope around the tent, attached it to a wagon, dragged it a short distance, when it collapsed, 'and the tent and its contents spilled out,' and were set on fire and burned up. Then the defendants 'came back with the wagon, and put the balance of the stuff laying on the ground in the wagon. ' Plaintiff begged the driver to haul the things to the 'dug-out.' Some of the defendants said they would take care of that, and one of them said to plaintiff, 'Now you get out of town within four hours. ' What was hauled away in the wagon was given to a widow lady for fuel.

The testimony of the defendants tended to support the allegations of the defendants' answer, except as to the alleged possession of the premises by Clay Peters. Other testimony is referred to in the opinion.

See 120 F. 695.

N. Soderberg and A. Chartz, for plaintiff.

Campbell, Metson & Campbell and Kenneth M. Jackson, for defendants.

HAWLEY District Judge (orally).

It is claimed by defendants that plaintiff cannot maintain this action. This contention is based solely upon the ground that the testimony offered on behalf of plaintiff is wholly insufficient to sustain the action. The specific grounds of this contention are: (1) That diverse citizenship has not been established; (2) that the action cannot be sustained as an action of forcible entry; (3) that it cannot be sustained as an action in trespass quare clausum fregit. In connection with these points it is argued that the plaintiff's own evidence shows 'that he had abandoned his possession' of the lot and tent.

1. Upon the trial plaintiff testified that he was a gardener by occupation, and had resided in Inyo county, Cal., for about 29 years; that in June, 1901, he left Inyo county and went to Tonopah, as much for his health as for any other purpose, as the doctors advised him that it would be good to get out in the hills. 'Q. At the time you left Inyo county, what intention did you have about returning? A. I intended to return. That is the only place I would live-- in the state of California-- and I have always said so. Q. Have you ever had during the last twenty-nine years, any residence except Inyo county, California? A. No, sir; only during the short time I have been in Tonopah, and been delayed here. Q. Your home during all those years has been in Inyo county? A. Yes, sir. Q. And it is there now? A. Yes, sir; that is my residence, my home. ' The cross-examination did not bring out any fact in opposition to his testimony, in chief. In June, 1901, the plaintiff was an actual, bona fide resident and citizen of Inyo county, Cal. According to his sworn testimony, he did not abandon his residence there. He left to go to Tonopah, Nev., with intent to return to Inyo county, Cal. The mere fact that he sold his gardening tools before leaving Inyo county does not, of itself, prove that he left without intent to return. The circumstance that he took most of his clothing with him is of little significance one way or another. The fact that plaintiff was a laborer with but little means, and owned no dwelling or land, and was without any family, is a matter proper to take into consideration, with other matters, as to his intention, but does not, of itself, justify the court in declaring that it was not his intention to return in the face of his positive evidence upon this point. Citizenship, not the place of residence, is the test of jurisdiction. The fact that plaintiff was living in Nevada at the time this suit was brought was prima facie evidence of his citizenship here, but it is not conclusive. A person may be a citizen of one state or county and reside for the time being in another. McDonald v. Salem Flour-Mills Co. (C.C.) 31 F. 577; Collins v. City of Ashland (D.C.) 112 F. 175, 178, and authorities there cited. In Chiatovich v. Hanchett (C.C.) 78 F. 193, this court held that 'a defendant who is a citizen and resident of another state than that of the plaintiff is entitled, under the act of 1887-88 (Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St.1901, p. 508)), to remove to the federal court a suit brought against him in the state court, although at the time the suit was commenced and the petition for removal filed he was temporarily residing in the state where suit was brought. ' The place where a person lives is taken to be his domicile until facts adduced establish the contrary. ...