Jones v. Kepford

Citation100 P. 923,17 Wyo. 468
PartiesJONES ET AL. v. KEPFORD
Decision Date05 April 1909
CourtUnited States State Supreme Court of Wyoming

ERROR to the District Court, Big Horn County; HON. CARROLL H PARMELEE, Judge.

The action was brought by Walter A. Kepford against Martin L Jones and Mattie K. Jones, his wife, to enjoin the defendants from interfering with the plaintiff's enjoyment of a private right of way across certain premises of the defendants, and for damages. From a judgment in favor of the plaintiff, the defendants brought error. The facts are stated in the opinion.

Reversed.

W. L Walls and E. E. Enterline, for plaintiffs in error.

Under Section 2770, Revised Statutes, 1899, the homestead right is preserved to the "owner or occupant," and consequently in the alienation of the homestead it is necessary for the wife to join even though there had not been actual occupancy. Conceding, however, the necessity for actual occupancy the evidence clearly established an occupancy by the plaintiffs in error. The mere fact that the owner and his wife moved to another place is not in itself sufficient to establish abandonment, but there must be also evidence to show an intention to not return, or, that after such removal an intention to remain away was formed. (Banks v. Chamberlain, (Neb.) 100 N.W. 943; Edwards v. Reid, 39 Neb. 645.) The fact that the plaintiffs in error exercised control over the homestead continually, and that they returned to it, in connection with the testimony of Mrs. Jones that she never abandoned the homestead, sufficiently shows the absence of any intention to abandon. The fact that they temporarily lived on rented property is a circumstance tending to show that there had been no abandonment, especially as they did not at any time surrender to any one possession of the homestead. (Waples on Homestead and Exemptions, 558-559, and cases cited).

When premises have become invested with the homestead character a constructive occupancy will be sufficient to retain it, and it will not be lost by a temporary absence with no intention of abandonment. (Waples 186, 187, 189.) No abandonment is occasioned where the former residence tract is used in connection with a neighboring one to which the family of the homesteader removes. (21 Cyc. 604; 15 Ency L., 2nd Ed. 645; Summers v. Sprigg, (Ky.) 35 S.W. 1023; Chase v. Barnard, 64 N.H. 615.) Homestead rights must be upheld unless clearly shown to have been abandoned. Continued personal occupation is not necessary and what period of absence is necessary to work a forfeiture must depend upon the circumstances of each case. (Lyons v. Andry, 106 La. 356; Thompson on Homesteads and Exemptions, Sec. 272.) The leasing of homestead premises during a temporary absence does not constitute abandonment. (15 Ency L., 2nd Ed. 651; Towne v. Rumsey, 5 Wyo. 11.)

Ridgely & West, for defendant in error.

The evidence conclusively shows an abandonment of the homestead. Under Section 3902, Revised Statutes, 1899, the alleged homestead would not be exempt from the attack of creditors. And not being exempt there is clearly a complete abandonment for all purposes with reference to the homestead law. The usual definition of "homestead" clearly excludes the defendants below, plaintiffs in error here, from the benefit of the contention that at the time of the conveyance in question the land in controversy constituted a homestead. (5 Ency. L. 525; Towne v. Rumsey, 5 Wyo. 15; Ullman v. Abbott, 10 Wyo. 97.) The evidence is clear that the plaintiffs in error had interfered with the right of way conveyed to the defendant in error, thereby authorizing the relief prayed for.

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

At the suit of defendant in error the plaintiffs in error, their agents, successors and assigns were perpetually enjoined from interfering with the defendant in error in the peaceable use and enjoyment of a private right of way over and across plaintiffs in error's premises and was awarded a judgment for damages in the sum of $ 70. The case was tried without the intervention of a jury to assess the damages and the court made and entered its special findings of fact and the case is brought here on error.

The findings of fact are as follows:

"1st. That the defendant Martin L. Jones is the owner of a certain piece of land as described in the petition of the plaintiff.

"2nd. That on the 13th day of June, 1905, the defendant, Martin L. Jones, by deed granted to the plaintiff a right of way over and across said land.

"3rd. That at some time more than two years previous to the granting of the right of way to said Kepford, the said Martin L. Jones and Mattie K. Jones had resided upon the tract of land through which the said right of way was granted, with their family but not for more than two years previous to June 13th, 1905.

"4th. That Martin L. Jones is the husband of Mattie K. Jones and both of them have resided in the State of Wyoming during all times mentioned in the petition and answer.

"4th. That at the date of said instrument the defendants had abandoned their residence on the land described, and had not resided upon said land for a period of over two years, and had maintained residence elsewhere in the State of Wyoming for themselves and family during all of that time; and that said land was not a homestead of defendants at the date of said instrument.

"5th. That both of said defendants have wrongfully interfered with the plaintiff in his peaceful enjoyment of said right of way, to the plaintiff's damage in the sum of $ 70.00.

"6th. The court further finds as a matter of law: that the instrument in question, dated June 13th, is a good and sufficient grant of a right of way over and across the land in question. The court, being fully advised in the law and the premises, it is

"Therefore ordered, adjudged, and decreed that the injunction herein prayed for, be, and the same is, hereby made permanent; that the plaintiff be awarded judgment against the defendant herein in the sum of $ 70.00, and said judgment is hereby awarded, and that plaintiff have and recover from the defendants herein his costs herein expended, assessed at the sum of $ ...., for which costs and damage execution will issue."

It is urged that the second part of the 4th and the 5th finding of fact are each unsupported by the evidence and that the court erred in its 6th finding as a conclusion of law.

It was claimed by the plaintiffs in error that the premises over and across which the defendant in error claims the right of a private way was their homestead at the time of the execution of the deed by Martin L. Jones and that that instrument was void owing to the fact that Mattie K. Jones, his wife, did not join in its execution. The defendant in error rests his right under the deed on the claim that at the time of the execution of the deed the plaintiffs in error had abandoned their right of homestead. This is the theory upon which the case was presented, both in the court below and here, and excludes from our consideration all questions other than that of abandonment, for it seems to be conceded both in theory and in argument that if the right of homestead existed at the time of the execution of the deed then the latter was void because of the absence of the signature of the wife.

The word abandoned as used in the 4th finding of fact with reference to the abandonment of a homestead has a well defined meaning. It requires a union of the act of removing from a homestead and an intention to not further retain it as a homestead, or the formation of an intention after such removal of remaining away, in other words, the physical act of removing is not sufficient unless attended or followed by an intention to actually abandon the homestead. (Bank v. Chamberlain, (Neb. 1904.) 72 Neb. 469, 100 N.W. 943; Edwards v. Reid, 39 Neb. 645, 42 A. S. 607, 58 N.W. 202.) Temporary absence without such intention is not sufficient.

The evidence shows that the premises were owned by the plaintiffs in error and that the land had been occupied by them as a homestead. This fact was known to the defendant in error and the burden rested with him to overcome the presumption that the premises continued to be a homestead by showing its abandonment as such.

The evidence as a whole tended to show that the plaintiffs in error rented a...

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