Kunkel v. The Utah Lumber Co.

• Decision Date: 31 July 1905
• Docket Number: 1646
• Citation: 81 P. 897,29 Utah 13
• Court: Utah Supreme Court
• Parties: MARK KUNKEL, Appellant, v. THE UTAH LUMBER CO., a Corporation, and CHARLES MURPHY, Respondents

81 P. 897

29 Utah 13

MARK KUNKEL, Appellant, v. THE UTAH LUMBER CO., a Corporation, and CHARLES MURPHY, Respondents

No. 1646

Supreme Court of Utah

July 31, 1905

APPEAL from District Court, Salt Lake County; S.W. Stewart, Judge.

Action by Mark Kunkel against the Utah Lumber Company and another. From an adverse judgment, plaintiff appeals.

REVERSED.

Patterson & Moyer for appellant.

APPELLANT'S POINTS.

All of the assignments of error may very properly be discussed together for if it be true his possession being admitted that it was not incumbent on the plaintiff to show title or if the title he actually did show was sufficient to support the action then all the errors are well taken and a new trial must be ordered. The question of law is so elementary in its nature and the authorities are so absolutely harmonious on the question that we almost feel like apologizing for submitting any authorities at all for the consideration of this court. Inasmuch, however, as the contrary doctrine was strenuously contended for by counsel for the respondents at the trial below and inasmuch further as the trial court must have to some extent at least adopted the views of counsel on that question we cite a few of the many authorities indicating the correct rule of law.

Possession unsupported by evidence of title is sufficient to maintain trespass against a wrongdoer. (Edmonson v. Lovell, F Cas. No. 4286, 1 Cranch C. C. 103; Lankford v Green, 62 Ala. 314; Morris v. Robinson, 80 Ala 291; McCarron v. O'Connell, 7 Cal. 152; Inskeep v. Shields, 4 Har. 345 [Del.]; Crawford v. Watterson, 56 Fla. 472; City of Cartersville v. Lyon, 69 Ga. 577; Marks v. Sullivan, 8 Utah 411.

In an action to recover damages for a trespass, the possession of plaintiff is sufficient evidence of title as against a mere trespasser. (Golden Gate Mill & Min. Co. v. Joshua Hendy Mach. Works, 82 Cal. 184, 23 P. 45.)

The testimony offered by the defendant, that the title to the land was in the State and not in the plaintiff, was properly excluded. The defendant made no claim to a right of possession under the State. The plaintiff's possession was sufficient to enable him to maintain the action against one showing no better right, even if the State had the title. (Fowler v. Owen, 68 N.H. 270, 73 Am. St. Rep. 588.)

In an action for a wrongful trespass by a stranger, on the premises held by the plaintiff as a lessee, the plaintiff need not produce the lease. Evidence of possession on his part, under a claim of right by written instrument, is enough, against a wrongdoer. (Walker v. Wilson, 21 N.Y. Super. Ct. [8 Bosw.] 586.)

An action of tort for breaking and entering the plaintiff's close may be maintained, if the plaintiff is in possession, and neither party proves title to the close. (Sweetland v. Stetson, 115 Mass. 49.)

One in possession of land under a levy can maintain an action of trespass against a mere stranger, and a verdict for the defendant in such case will be set aside. (Blaisdel v. Roberts, 37 Me. 239.)

Possession under claim and color of title is sufficient evidence of title as against a mere trespasser. (Douglass v. Dickson, 31 Kan. 310, 1 P. 541.)

There seems to be no question but that the court erred in admitting, over the objection of the plaintiff, testimony questioning plaintiff's title and that plaintiff's sixth request set out in assignment of error No. 9 demanding a peremptory instruction in favor of the plaintiff for the value of the building unlawfully converted to defendants' use ought to have been given, and that the court erred in rendering judgment on the verdict in favor of the defendants and that plaintiff's motion for a new trial ought to have been granted and that by reason of the errors herein complained of appellant is entitled to an order of this court reversing the judgment of the court below and remanding the case for further proceedings in accordance with law.

James Ingebretson for respondents.

RESPONDENT'S POINTS.

The theory upon which the case was tried in the lower court with the acquiescence of the plaintiff may be stated as follows: (1) That in order to be entitled to actual damages from defendants, the plaintiff must establish that he was in possession in good faith under color of title. (2) That in order to recover exemplary damages, the plaintiff must establish that the defendants' acts were willful, malicious and oppressive.

We do not assume at this time to assert that the foregoing theory is either correct or wrong under the law. It is the theory which plaintiff adopted in attempting to recover in the court below, and by well established principles of law he is now bound by that theory in this court. And it is in the light of this theory that this court must consider the exceptions relied upon by the plaintiff. For a full statement of the rule, the court is referred to 21 Ency. of Pleading and Practice, 664, also, Elliot on Appellate Procedure, section 490. The theory of the case is determined primarily from the instructions requested or those given without objection. (21 Ency. Pl. and Pr., 669 and cases cited.) This court has heretofore expressly endorsed the foregoing rule. (Lebcher v. Lambert, 23 Utah 1; Friel v. Wood, 1 Utah 160.)

We also at the outset, emphasize this point, that we never admitted an unqualified possession by the plaintiff. We alleged in fact, simply what the jury found, that plaintiff was in possession fraudulently, illegally and wrongfully. As to the testimony tending to avoid or reduce exemplary damages, we contend, first, that the objections reserved by exceptions 1, 2, 3, 4, 5 and 7 are without merit for the reason that these questions and their answers merely tended to place before the court all the facts and circumstances closely related to and connected with the transaction for which the suit was brought, so that the jury might determine whether plaintiff was entitled to exemplary damages. That this was proper and material there can be no doubt, and even though the court might find that these questions and answers tended also to prove or disprove some other fact which was immaterial, this court must uphold the lower court in admitting them for the purpose stated.

As regards the ninth exception, it is only necessary to point out that no exception was reserved by the plaintiff to the court's refusal to give this request, and it is too well established in this court for any argument that the court cannot consider this exception. In any event this request was clearly covered by the court in the instructions given. (Harda v. Bank, 9 Utah 412; Burt v. Utah Light & Power Co., 26 Utah 157.)

STRAUP, J. BARTCH, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

1. This was an action brought by plaintiff and appellant for alleged wrongful and malicious acts of the defendants and respondents in entering upon the premises owned and in the possession of plaintiff, and in removing therefrom a certain dwelling house. The case was tried before the court and jury, and a verdict rendered in favor of defendants. Plaintiff appeals.

The substance of the complaint is that the plaintiff was the owner and in the possession of certain lots in Salt Lake City, upon which there was constructed a dwelling house practically completed, and another was in the course of construction, the total value of which was alleged to be $ 4,000, with an annual rental of $ 400; that plaintiff had given a mortgage on said premises in the sum of $ 850, and also owed about $ 1,950 for labor and materials in the construction of said buildings, but that he had made arrangements whereby he was able to borrow a sufficient sum of money to pay off all of said indebtedness; that the defendants wrongfully, maliciously, and with intent to injure plaintiff, entered upon said premises and removed therefrom the completed building, of the value of $ 1,500, and placed the same on ground not owned by him, and in so doing tore down and destroyed the foundation and cellar walls of the said building; that by reason thereof plaintiff was unable to procure the money to discharge the said indebtedness, and the said mortgage and other liens were foreclosed, and plaintiff lost the whole of the said property. He prayed $ 1,500 actual, and $ 5,000 exemplary, damages. The answer was specific denials of the complaint.

It appears from the evidence on behalf of the appellant: That he purchased the lots from one Elwell through Addison Cain Elwell's agent and his attorney in fact, for the sum of $ 850. In January, 1903, Elwell conveyed by deed the lots to appellant, the latter giving his promissory note and a mortgage on the lots in payment of the purchase price. Appellant was a resident of Salt Lake City, about twenty-one years of age, unmarried, a well driver, and was earning about $ 1,000 per annum. Elwell also gave him a written contract agreeing to perfect whatever defects there might be in the title, and to defend it at his (Elwell's) expense, and also agreed to advance him $ 1,000 for the construction and completion of two dwellings upon the lots, when the roof was on. Appellant took possession of the lots, and along the 1st of August, 1903, let a contract for the construction of the houses. The defendant lumber company of Salt Lake City was engaged in the lumber business and defendant Murphy was its manager. About the 5th day of August, 1903, appellant presented to Murphy a statement of the quantity and character of lumber desired, and on the day following the lumber company submitted to him its price, which was agreed upon, and the lumber company thereupon agreed to furnish and deliver to the plaintiff about $ 400 worth of lumber, for which plaintiff agreed to pay. The lumber company at once proceeded to deliver the lumber upon the...