Gentry v. Pacific Live Stock Co.

Decision Date20 June 1904
Citation45 Or. 233,77 P. 115
PartiesGENTRY v. PACIFIC LIVE STOCK CO.
CourtOregon Supreme Court

Appeal from Circuit Court, Malheur County; M.D. Clifford, Judge.

Action by James Gentry against the Pacific Live Stock Company. From a judgment for plaintiff, defendant appeals. Reversed.

John L. Rand, for appellant.

Dalton Biggs, for respondent.

BEAN J.

In June, 1899, the Pacific Live Stock Company commenced a suit in equity in the circuit court for Malheur county against James Gentry to enjoin and restrain him from trespassing on or interfering with its possession of certain real property in that county, known as the "Rinehart Springs Ranch." In its complaint it alleged, in substance, that it was the owner in fee and entitled to the immediate possession of the property in question; that in 1895 it employed the defendant to reside upon and care for the property, cultivate and harvest the hay crop growing and to be grown thereon, to keep the place in repair, and generally to do any and all things needful and necessary to protect its possession and enjoyment thereof; that, in pursuance of such employment, Gentry went into possession as its agent and servant, and so remained until 1898, when he wrongfully and unlawfully, and in violation of his contract, pretended to take possession of the property in his own behalf, ousted the servants and employés of the live stock company, and threatened to appropriate to his own use large quantities of hay and grain growing thereon, its property. Gentry, for his answer, denied all the allegations of the complaint, except his possession of the property, and for an affirmative defense alleged that in October, 1894, the land in controversy was unsurveyed public land of the United States; that he settled upon the same with the intention of entering it under the homestead law, as soon as it should be surveyed, and had ever since continued to reside upon, cultivate, and improve the same. The reply put in issue the new matter in the answer, and upon the trial the court found that on or about October 21, 1894, Gentry, with the consent and by the advice of the live stock company, settled upon the land in controversy, which was then unsurveyed public land of the United States, with the intention of entering it as a homestead; that at the time of his settlement an oral agreement was entered into by and between him and the live stock company, whereby he promised and agreed to harvest and put up the hay growing and raised annually on the land, and deliver the same to the company, and to establish and maintain a camp or stopping place for the accommodation and board of its employés and for the feeding of its cattle, in consideration of which it was to pay him $25 a month and supply him with all necessary tools, machinery, labor, etc that Gentry did not enter into possession of the premises under or by virtue of any contract with or employment by the live stock company, and did not hold possession for its benefit or as its agent or employé; that it was not the owner or entitled to the possession of the property; that ever since October, 1894, except when prevented by the preliminary injunction, Gentry occupied and cultivated the land, with the intention of entering the same under the homestead law, and made valuable improvements thereon. As conclusions of law the court found that Gentry was entitled to the exclusive possession of the property and that plaintiff's complaint should be dismissed. A decree was thereupon entered, ordering and adjudging that plaintiff's complaint, "filed herein, be, and the same is hereby, dismissed, and that the temporary injunction existing herein against the defendant be, and the same is hereby, dissolved and vacated." From this decree an appeal was taken, and on a trial de novo this court found that there was "not error as alleged," and "coidered, ordered, and decreed that the decree in this cause in the court below rendered be, and the same hereby is in all things affirmed; and, it appearing to the court and the court further finding that the appellant is not entitled to the relief prayed for, or any part thereof, and that the...

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18 cases
  • Levene v. City of Salem
    • United States
    • Oregon Supreme Court
    • March 21, 1951
    ...under the statute to try the suit anew upon the transcript and the evidence accompanying it. § 10-810, O.C.L.A.; Gentry v. Pacific Livestock Co., 45 Or. 233, 236, 77 P. 115. We have carefully considered the evidence of damages, both to personalty and to real property, which was submitted by......
  • First Nat. Bank of Burns v. Buckland
    • United States
    • Oregon Supreme Court
    • September 17, 1929
    ... ... St. Rep. 780; Caseday v. Lindstrom, 44 Or. 309, 75 P. 222; Gentry v. Pacific Livestock Co., 45 Or. 233, 77 P. 115). This distinction should ... ...
  • Taylor v. Taylor
    • United States
    • Oregon Supreme Court
    • August 17, 1909
    ... ... As held in Gentry v. Pacific Live Stock Co., 45 Or. 233, 77 P. 115, and De Bow v ... ...
  • Slate Const. Co. v. Pacific General Contractors, Inc.
    • United States
    • Oregon Supreme Court
    • February 21, 1961
    ...16 P. 651; La Follett v. Mitchell, 42 Or. 465, 69 P. 916, 95 Am.St.Rep. 780; Caseday v. Lindstrom, 44 Or. 309, 75 P. 222; Gentry v. Pacific Livestock Co. 77 P. 115). This distinction should always be kept in mind in considering the effect of a former judgment or decree. If the second action......
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