Kurth v. Le Jeune
| Decision Date | 20 July 1928 |
| Docket Number | 6340. |
| Citation | 269 P. 408,83 Mont. 100 |
| Parties | KURTH et al. v. LE JEUNE. |
| Court | Montana Supreme Court |
Appeal from District Court, Chouteau County; Charles S. Hartman Judge.
Action by Rodney H. Kurth and others against Joseph Le Jeune executor, substituted for Philomena Le Jeune. Judgment for defendant. Plaintiff's motion for new trial was denied and plaintiffs appeal. Reversed and remanded, with directions to enter judgment for plaintiffs in part, and to grant them new trial in part.
Miller & Wiley, of Ft. Benton, for appellants.
Stranahan & Towner, of Ft. Benton, for respondent.
The plaintiffs brought this action to recover a tract of ground, about 18 acres in extent, of which they allege they have been at all times the owners and entitled to possession, and from which they allege the defendant wrongfully ousted and ejected them in 1921, and of which she has ever since wrongfully remained in possession; plaintiffs ask to be restored to the possession of the land, and for a money judgment-$250 for the value of a crop which was growing upon the land when defendant took possession, which she converted to her own use, and $750 as the reasonable rents and profits of the land during the period she has occupied it.
The defendant, after denials, admitted her possession of the land. She alleged that plaintiff's cause of action, so far as the same applies to any damage for the seizing, taking, or converting growing crops during any period prior to two years before the commencement of this action is barred by the provisions of section 9033 of the Revised Codes of Montana. She alleged that the government established a quarter section corner upon the northerly line of section 24, township 22 north, range 6 east, equidistant between the northeast corner and the northwest corner of that section; that prior to 1921 Peter Jaraczeski, the then owner of the northwest quarter of section 24, claimed by the plaintiffs, for the purpose of attempting to appropriate to his own use a portion of the east half of the section now owned by the defendant, removed the government monument properly marking the center of the north half of the section on its northerly line eastward a distance of 619 feet, thus making the east half of the section on its north line appear to be only 2,021 feet in width, and the west half 3,259 feet in width, which Jaraczeski confessed when about to die; and she alleges that through proper proceedings she caused the marker to be put in its rightful place. Plaintiffs replied. Upon trial, the jury found for the defendant. The plaintiffs' motion for a new trial having been denied, they appealed.
1. In order to determine the question presented by defendant's plea of the statute of limitations, we must first consider the nature of the action. Clearly it is in ejectment, with claim for mesne profits.
In chapter XIX of his work on Ejectment, Mr. Newell discusses the compensation which the successful plaintiff in an action for the recovery of real property is entitled to by reason of the withholding of the property from him by the defendant. Properly speaking, he says, this compensation is designated as mesne profits. "Mesne profits are the rents and profits, or the real value of the use and occupation of the real property recovered in an action of ejectment during the period the property has been wrongfully withheld." Newell on Ejectment, 606. The period of limitation provided with respect to an action for the recovery of real property or the possession thereof is 10 years (section 9015, R. C. 1921) and the same limitation applies to "an action for mesne profits of real property" (section 9028, R. C. 1921).
The statute pleaded by defendant relates to "an action for injury to or for waste or trespass on real or personal property" (section 9033, subd. 2, R. C. 1921), and does not apply to the condition presented in this action.
2. It appears that the government surveyed section 24 and adjacent sections in 1873, and presumably the customary markers were placed upon the ground at the time. Early in 1911, Amelia Jaraczeski and Harry C. Churlien located homesteads in section 24; Jaraczeski taking the northwest quarter and Churlien the east half of the section. Each located with reference to the quarter section corner in question. Each eventually received patent from the government for the lands located. In the letters patent, the lands conveyed were described by legal subdivisions. On October 23, 1916, Amelia Jaraczeski conveyed her land to her son Peter Jaraczeski, who, on November 24, 1916, conveyed it to Sam Kurth and J. A. Kensey, one of the plaintiffs. In March, 1921, Sam Kurth conveyed his interest in the land to one Ryffel who in October, 1921, conveyed the same to Rodney H. Kurth and Lloyd S. Kurth, plaintiffs. Churlien conveyed his land to defendant in 1917. Upon the application of Harry Churlien, Amelia Jaraczeski, Peter Jaraczeski, and other settlers in the vicinity, the county authorities in November, 1913, established a public highway, beginning at the southeast corner of section 18, township 22 north, range 7 east, where a public highway existed, running thence west on the section line "to the 1/4 cor. on north boundary of section 24, T. 22 N., R. 6 E.; thence south following the half section line as nearly as practicable 1/2 mile to the center of said Sec. 24." The road ran west to the stone, which is the focal point in this case, and then turned south.
A fence built by Jaraczeski ran parallel with and adjacent to the highway from the quarter section monument running south. The monument was but 2,021 feet from the northeast corner of section 24, and 619 feet east from the center point along the north line of the section.
In the summer of 1921, the defendant, finding that the tract occupied by her did not contain 320 acres of land, set about to remove the quarter section monument from the place it then occupied to the center point of the north line of the section. Application was made to the surveyor general, who refused to remove the stone, but referred her to the county surveyor, giving the rules prescribed by the government for restoring lost and obliterated monuments. The defendant then employed the county surveyor, who made a survey of the north line of the section and set a stone midway thereon. He also surveyed south from the stone he had set, to the center of said section, leaving a strip of land on the west side for a proposed highway. Later in the year the defendant built a fence from the stone set by the surveyor south to the center of the section (along the proposed highway), thereby inclosing the tract of land in dispute. At that time there was a growing crop of wheat cultivated by the plaintiffs on the tract of land so fenced in by the defendant, which she converted to her own use, and the defendant has occupied, cultivated, and held the disputed tract continuously since she took possession of the same. On August 31, 1926, the plaintiffs brought this suit.
It is the custom of the government in its survey of public lands to set stones, called quarter section monuments, half way between two sections. The stones are marked " 1/4." But they are seldom found exactly half way between the sections, and sometimes are long distances from the halfway point. The stone in question had the appearance of a government monument; there was a quarter mark upon it; and the witness, a surveyor, saw two faint pits alongside. Pits are dug on either side of quarter monuments. "It was set in the ground in good shape." "It did not show anything that would lead me to believe that it was not a regular government stone."
Charles Brow, who lives on section 13 north of section 24, testified that he knew the quarter section monument in 1910, and knew when Jaraczeski built the fence south from that point. The stone was in the same position the day the fence was built as it was in 1910, when the witness used it as a guiding stone in locating his own corners. The stone was never moved from the place it occupied in 1910.
Nels Skaiaa filed upon his homestead, which is in section 19 adjoining section 24 on the east. He saw the quarter section monument on the north line of 24 in 1910. ...
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