Huffman v. Smyth

• Decision Date: 30 January 1906
• Citation: 47 Or. 573,84 P. 80
• Parties: HUFFMAN v. SMYTH et al.
• Court: Oregon Supreme Court

84 P. 80

47 Or. 573

HUFFMAN v. SMYTH et al.

Supreme Court of Oregon

January 30, 1906

Appeal from Circuit Court, Harney County; George E. Davis, Judge.

Action by William D. Huffman against Fannie E. Smyth and another. From a decree dismissing the complaint, plaintiff appeals. Reversed.

This is an equity suit for the possession of unsurveyed public lands upon which the appellant claims to have settled with the intention of claiming the same under the homestead laws, and from which he claims to have been ousted by the respondents and to enjoin respondents from interfering with the possession of such land. The complaint alleges the necessary qualifications of the appellant as a homesteader, and that he is the owner of the improvements upon and entitled to the possession of certain public lands in Harney county, Or., a portion of which improvements he purchased from a prior occupant of the land and immediately entered into possession of the land and improvements with the intention of filing upon the land when surveyed as a homestead under the laws of the United States; that he has ever since cultivated and farmed the land and made additional improvements by building corrals thereon, clearing, plowing, and fencing, and digging ditches thereon, and otherwise adding to and improving the lands, which improvements, together with those purchased, are reasonably worth the sum of $3,000; that he continued to so occupy the lands and improvements until the spring of 1900 when he was convicted of a felony and sent to the penitentiary in this state for a term of 10 years, where he was confined until 1905, when a full pardon was granted him that at the time he was confined in prison the respondent Fannie Smyth was his wife, but soon thereafter procured a decree of divorce from him, in which it was ordered that she should have as alimony possession of the improved portion of and improvements upon the lands claimed by him , for the maintenance of herself and children, but alleges that all such portion of such decree affecting the land and its improvements and the right to possession thereof is void and of no effect, and that while appellant was away from the land, under sentence in the penitentiary, she unlawfully, and without any right or authority, and without any right, title or interest in the premises, except such as was granted her by the decree in the divorce case above mentioned, and without the consent of the appellant, took possession of the lands and improvements claimed by him, and that the other defendant, George M. Smyth, is her husband and claims as such some interest in the premises; that prior to the commencement of this suit appellant demanded possession of the premises and all improvements and appurtenances belonging thereto of the respondents, but they refused and still refuse to deliver possession; that respondent Fannie Smyth is a married woman, living with her husband and not compelled to support herself or family, and in this and other respects is not qualified to maintain a possessory right to the premises or enter the same under the homestead laws of the United States; that said lands produce a large crop of hay annually, amounting to about 100 tons, worth the sum of $600; that a large crop of hay is now growing thereon and will soon be ready to harvest, and the respondents threaten to and will harvest the same and use it to appellant's irreparable damage; that respondents are not properly irrigating said hay nor caring for it in proper manner, and that, unless restrained from using said premises, appellant will be damaged in the sum of $1,000; and that, by reason of the wrongful possession of the respondents and by their not permitting him to take possession of said premises, he is unable to protect his homestead rights to said lands and will be unable to hold the same under the laws of the United States, and that other parties are threatening to take possession of and hold the land under said laws and will do so unless he is restored to the possession thereof, and will cause him to lose the same, and that he will be damaged in the sum of $10,000. He prays for an order directing the court to put him in possession, and to vacate the divorce decree so far as it applies to these lands and improvements, and for an order restraining and enjoining the respondents from interfering with his possession of the premises mentioned. A demurrer was filed, alleging, first, want of jurisdiction of the subject-matter of the suit; and, second, that the complaint does not state facts sufficient to constitute a cause of suit. This demurrer was sustained, and a decree entered dismissing the complaint, from which decree this appeal was taken.

King &amp Brooke and Biggs & Biggs, for appellant.

William Miller, for resp...