Hamilton v. Huson

• Decision Date: 21 March 1898
• Citation: 53 P. 101,21 Mont. 9
• Parties: HAMILTON v. HUSON et al.
• Court: Montana Supreme Court

53 P. 101

21 Mont. 9

HAMILTON v. HUSON et al.

Supreme Court of Montana

March 21, 1898

Appeal from district court, Fergus county; Dudley Du Bose, Judge.

Action by Robert E. Hamilton against E. A. Huson and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Frank E. Smith and C. B. Nolan, for appellant.

Carpenter & Carpenter, Walsh & Newman, and Rudolph Von Tobel, for respondents.

PEMBERTON C.J.

Plaintiff alleges in his complaint that he is the owner, in possession and entitled to the possession, of three certain placer mining claims in Fergus county. He alleges that in February 1897, the defendants wrongfully entered upon these mining claims, and cut down a large amount of timber and trees growing thereon; that they are removing the same, and threaten to continue to cut down and carry away the timber. Plaintiff asks for damages, and for a perpetual injunction restraining the defendants from cutting down and removing the timber. The answer denies the allegations of the complaint as to the ownership and possession of the mining claims in controversy, as well as the allegations as to damages, and sets up affirmatively that defendant Huson is the sole owner of the premises in dispute. Defendant Maloy disclaims any interest in the ground, and alleges he was an employeé of defendant Huson. By stipulation, the allegations of new matter contained in the answer are denied. At the close of plaintiff's evidence, the defendants filed the following motion for a nonsuit: "Defendants move at this time for a nonsuit on the following grounds, to wit: First, that the evidence does not show any title or right of possession in the plaintiff; second, that the evidence does not show any actual possession by the plaintiff of the premises described in the complaint, or any part thereof; third, that the evidence does not show any damage to the plaintiff; fourth that the evidence does not show that the defendants, or either of them, or their agents, were guilty of any trespass upon the premises described in the complaint, or any of them, either by cutting trees or otherwise; that the evidence does not show that the damage, if any, resulting from the cutting of the timber, would be irreparable; that the evidence does not show that the plaintiff, or his grantors, are citizens of the United States, or have declared their intention to become such." This motion was granted by the court. Judgment was rendered for defendants for costs. From this judgment, and an order overruling a motion for a new trial, this appeal is prosecuted.

As disclosed by the record, plaintiff claimed to own, and is entitled to the possession of, the mining claims in question as the purchaser thereof from the Buchanan Brothers and one Brooks, who, it is contended, located the claims in the year 1881. It is also contended that the Buchanans relocated the mining claims in 1888. The relocation notice is in the record. It is defective, in that it is not sworn to by any one. After the introduction in evidence of the certified copy of the deed from the Buchanans and of the relocation notice, plaintiff discovered that the notice of relocation of the claims was invalid; and thereupon abandoned his claims to a right of recovery, on the ground of title or right of possession to the ground, by reason of any valid location of the mining claims having ever been made, and sought to recover solely on the ground of actual possession. So that we are not called upon to determine any question as to the location of the mining claims or the validity of any notice of location. These questions are all eliminated from the case by the plaintiff's voluntary abandonment of...