Kane v. Oehler

• Decision Date: 27 February 1922
• Docket Number: 4643.
• Citation: 205 P. 245,62 Mont. 417
• Parties: KANE v. OEHLER ET AL.
• Court: Montana Supreme Court

205 P. 245

62 Mont. 417

KANE v. OEHLER ET AL.

No. 4643.

Supreme Court of Montana

February 27, 1922

Commissioners' Opinion.

Appeal from District Court, Yellowstone County; Charles A. Taylor Judge.

Action by Margaret Kane against Carl Oehler and another. From a judgment for plaintiff, defendants appeal. Modified and affirmed.

Collins & McKinney, of Billings, for appellants.

Guy C Derry, of Billings, for respondent.

HORSKY C.

This action was brought to recover of the defendants, Carl Oehler and Marie Oehler, damages for the conversion of a certain fence in which the plaintiff, Margaret Kane, claimed a one-half interest.

The plaintiff and the defendant Marie Oehler owned adjoining tracts of land in Yellowstone county, Mont. The fence in question, one-half mile in length, marked what was thought to be the boundary line dividing a part of these two tracts of land. Marie Oehler's predecessor in interest, one John Ingus, built the fence, and according to the testimony of the plaintiff, the posts used in its construction were furnished by Fred Dart, predecessor in interest of the plaintiff. Mr Dart testified that he and Mr. Ingus understood the fence in question to be a partnership fence and that he (Dart) supposed that it had been erected on the line between the two places.

After plaintiff had acquired the tract of land formerly owned by Mr. Dart, she caused it to be surveyed, and found that the fence was over on her land a distance of about 100 feet. Through her brother, Walter Kane, she caused this information to be communicated to the defendants. Mr. Kane said he informed defendants that the fence was off the line and on his sister's ground, and gave them five days in which to verify the survey, by having the land resurveyed themselves, and, if they found plaintiff's survey correct, he would himself move the fence over on the line. This is disputed by defendants, who claim that Mr. Kane notified them to move the fence in five days or he would claim it, and that after being so notified they consulted the county attorney of Yellowstone county, who advised them to move it, which they did on or about November 27, 1918.

Plaintiff then brought this action for the conversion of the fence, which she valued at $66, and in which she claimed a one-half interest, and for damages sustained by her because of the removal of the fence by the defendants, and also for $125 as exemplary damages. Defendants, in their answer, deny all the allegations of plaintiff's complaint, and by way of counterclaim allege that they have been damaged in the sum of $40 occasioned by stock belonging to plaintiff trespassing upon their lands, and for a further defense aver that they removed the fence in question at the request of the plaintiff.

Plaintiff by her reply put in issue all of the new matter set up in the answer. A trial was had, resulting in a verdict and judgment against the defendants for the sum of $258. Defendants appeal from the judgment and order denying their motion for a new trial.

It is first contended that there is no evidence to sustain the allegations of the complaint, wherein it is alleged that the conversion of the fence on the part of the defendants was done in a spirit of malice towards the plaintiff.

With this we do not agree. There was evidence introduced on the part of the plaintiff showing that the defendants, in effecting a removal of the fence, deliberately chopped down the posts, and that in some instances posts were left sticking up from the ground in sharp slivers, and others were splintered. The evidence further showed that the defendants moved this fence to their home; that the fence was removed on or about the 27th day of November; and that plaintiff, at the time, had within her inclosure stock of her own, as well as several head of stock that she was pasturing for a neighbor; and that, after the fence was removed, the defendants dogged plaintiff's stock off her place.

As to one such incident plaintiff testified as follows:

"As she dogged them past (referring to horses alleged to have been driven off the place of plaintiff by the defendant Marie Oehler), I ran down to open the gate, and she picked up some rocks and threatened me. She said she would dog everything off my place, that she wouldn't allow me to have one thing on my place, and she kept her word. They dogged the stock clear off my place three different times, and the last time was a cold day last winter, and the cows went off, and one of the cows lost her calf; was frozen to death when we found them."

Further from her testimony:

"Miss Oehler said that she would

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