Forbes v. Driscoll

• Decision Date: 11 February 1887
• Parties: Forbes v. Driscoll and another.
• Court: North Dakota Supreme Court

31 N.W. 633

4 Dakota 336

Forbes v. Driscoll and another.

Supreme Court of Territory of Dakota

February 11, 1887

Appeal from Lawrence county.

G. G Bennett, for respondent. E. W. Martin, for appellant.

TRIPP C. J.

This is an action brought by the plaintiff, Forbes, to recover possession of a quarter section of government land under our statute to "determine conflicting claims to real property." The particular allegations of the complaint on which the action was tried are as follows: "That during all the time from the first day of May, 1879, up to and until and at the time of the wrongful entry thereon by the defendant, as hereinafter alleged, the plaintiff was in the lawful, actual, quiet, peaceful possession, and entitled thereto, of the following described premises, situated in Lawrence county, Dakota territory, to-wit, [[then follows a description of the real property;] and that at all times since the plaintiff has been and now is entitled to the possession thereof, having on May 20, 1879, filed his declaratory statement of pre-emption in the United States land-office at Deadwood, Dakota territory. (2) That heretofore, to-wit, on or about the twentieth day of January 1880, and while the plaintiff was so as aforesaid in the lawful, actual, peaceful, quiet, and exclusive possession of said premises, and entitled thereto, the defendants wrongfully entered into and upon the same, and ousted and ejected the plaintiff therefrom, and ever since that day have wrongfully withheld the possession thereof from the plaintiff, to his damage in the sum of two thousand dollars."

No objection was made to the complaint, by demurrer or otherwise, but the defendants appeared, and answer thereto,--the defendant Foley by general denial, and the defendant Driscoll by general denial, and by allegations of new matter as a defense. The principal allegations of defendant Driscoll's answer, after the general denial are as follows: (2) That the defendant, George W. Forbes, has at no time made a settlement in person upon the land described in the complaint; that he has at no time inhabited or improved the said land, or made his home there, or resided thereon; that the said plaintiff has not at any time erected a dwelling thereon, or purchased or owned one thereon; that on the contrary, the said plaintiff has resided in the city of Deadwood, Lawrence county, Dakota, continuously, since the month of January, 1879, and long prior thereto, and has carried on business continuously there since that time, and that his family have resided with him at his home in the city of Deadwood, continuously, since the month of December, 1879; that the said George W. Forbes has wholly abandoned the said land long prior to the settlement and improvements thereon by the defendant under the pre-emption laws; and that the said land was wholly forfeited to the government of the United States long prior to the settlement and improvements of the defendant thereon. (3) That on the sixth day of January, 1880, the defendant Fredrick Driscoll, being a single person over the age of 21 years, and a citizen of the United States, made a settlement in person upon the land described in the complaint, the same being public land of the United States subject to pre- emption; that the said defendant settled peaceably upon the said land as a preemptor, and filed his declaratory statement of his intention to claim the said tract of land under the pre-emption laws of the United States, in the United States land-office at Deadwood, Dakota, on the eighth day of January, 1880; that the said defendant established his residence upon the said land on the sixth day of January, 1880, and has inhabited and cultivated and improved the same continuously since the said dates, and erected a dwelling-house thereon in the month of January, 1880; that the said defendant has built one and one-half miles of substantial fencing, with buildings and improvements on the said land, of the value of $1,500; and has broken and is cultivating 55 acres of said land, and has now a growing crop thereon of the value of $1,500. (4) That a contest is now pending in the United States land-office, before the register and receiver, at Deadwood, Dakota, to determine the rights of the parties herein to the said land, in which action the said George W. Forbes is plaintiff, and the said Fredrick Driscoll is defendant.

Upon the issues thus formed the parties proceeded to trial to a jury, and the plaintiff, without any objection on the part of the defendants, was permitted to offer and put in proof a large amount of evidence tending to prove that he made settlement upon the land in controversy some time in April, 1879, and filed his declaratory statement therefor, under the pre-emption law, on May 20, 1879; that he built a frame shanty addition to the log building then already on the premises; that he inclosed by fence a portion of the premises, including the log building and shanty, such inclosure being variously estimated at from two to ten acres, and breaking within such inclosure a few acres of land; that he also built some calf-pens and yards for branding cattle within such inclosure; that some of his employes occupied the house and inclosure during a portion of the summer and fall of 1879; that his wife was sick, and unable to come to the premises, but that he was there, off and on, at various times, and that he considered the premises his home, and that he possessed the statutory qualifications of a pre-emptor; that during the fall of 1879 the employes of the plaintiff removed from the premises to plaintiff's ranch on Cheyenne river, taking with them the plaintiff's stock, and that, during the plaintiff's absence from the place, the defendant Driscoll went onto the land, and built a house outside of the inclosure of the plaintiff, and moved his family into it; that thereafter the plaintiff, on returning to the premises, attempted to knock off some boards from the fence for the purpose of making some repairs upon his house, and that the defendant Driscoll immediately nailed the boards back upon the fence; that some words ensued between plaintiff and defendant Driscoll as to the legal rights of the parties to the premises, and thereafter this action was brought to oust the defendant from the premises.

The defendant Foley seems to have made no separate defense, nor to have made any claim to the premises, at the trial. The defendant Driscoll offered in proof a large amount of evidence tending to prove that the plaintiff never made any settlement upon the premises; that he was a ranch-man and a stock-raiser, and squatted upon the premises for the summer range only, and with no intention to enter the land; that his home was in Deadwood, where he was engaged in business, and that he owned a large ranch on the Cheyenne river, to which he removed his stock in the early fall of 1879; that he was not a bona fide claimant of the land, and that, whatever settlement he may have made in the spring of 1879, he had wholly abandoned the same; that defendant Driscoll was abona fide pre-emptor, in good faith, of the premises, and that he made settlement thereon in January, 1880, built a good and substantial dwelling, and moved his family into the same; that he did not in any manner interfere with the possessions, inclosure, or improvements of the plaintiff, and that the land upon which he built his house, and that portion of the premises occupied by him, were at that time vacant, unimproved government land; that there was no inclosure of any portion of the said premises by Forbes, and that the attempted inclosure by him did not exceed two or three acres, and that, outside of such inclosure, the entire quarter section was unimproved and unoccupied government land; that the defendant Driscoll was a qualified pre-emptor, and filed his declaratory statement for the said premises on the seventh day of January, 1880, subsequent to his settlement thereon; that he never interfered in any way with the improvements of the plaintiff, except to nail on some boards which plaintiff knocked off the fence, which this defendant claimed to own; that he made no resistance to plaintiff's repairing his house, but objected to the plaintiff's using lumber from the fence to make such repairs until his right to said lumber should be determined.

The testimony in rebuttal went only to new facts offered in evidence by the defendant, tending to prove that the plaintiff was not a bona fide resident upon the land, and excusing the absence of the plaintiff's family. There was no proof tending to rebut the bona fides of defendant Driscoll's settlement upon the land, or that the residence, settlement, and improvements of Driscoll were wholly outside of the inclosure and improvements of Forbes; and no testimony whatever that the defendant Driscoll was at the time of the bringing of this action interfering, or at any time ever had in any manner interfered, with the possession or improvements of Forbes, except the testimony as to renailing on the boards which Forbes had knocked off the fence. It does not appear from the testimony who built this fence, whether Forbes or Driscoll, or whether it was there when they entered upon the premises. It only appears that both claimed the particular fence, without disclosing any facts as to the foundation of such claim.

Upon this state of facts, and these pleadings, various instructions were asked on the part of Driscoll, generally relating to pre-emption rights, abandonment, etc., all of which were refused by the court, and exceptions duly saved by the defendant. And the court, of its own motion, fully charged the jury upon the rights of the respective parties under the pre-emption law, and stated to them the law of abandonment,...