Lalande v. McDonald

• Decision Date: 23 February 1887
• Citation: 13 P. 347,2 Idaho 307
• Parties: LALANDE ET AL v. McDONALD ET AL
• Court: Idaho Supreme Court

13 P. 347

2 Idaho 307

LALANDE ET AL v. McDONALD ET AL

Supreme Court of Idaho

February 23, 1887

NONSUIT-A FINAL JUDGMENT.-A judgment of nonsuit is a final judgment within the meaning of our code, from which an appeal will lie.

ACTION TO RECOVER REAL ESTATE-SECTION 2326 OF THE REVISED STATUTES OF THE UNITED STATES CONSTRUED.-Where an action to recover specific real property is brought pursuant to section 2326 of the Revised Statutes of the United States, and there is no evidence for the consideration of the jury, a nonsuit may be granted.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Affirmed.

A. E Mayhew, W. B. Heyburn and W. W. Woods, for Appellants.

When a party enters upon land with no higher evidence of title than that which the law presumes from his possession, and distinctly marks out the extent and boundaries of his claim his actual possession of a part within these boundaries gives him constructive possession of the whole. (2 Estee's Pleading and Practice, sec. 2172; Plume v. Seward, 4 Cal. 94, 60 Am. Dec. 599, and note.) Mining ground acquired by entry, under a claim for mining purposes, the bounds being distinctly defined, accompanied by actual occupancy of a part of the tract, is sufficient possession to maintain ejectment for the entire claim, although the acts of appropriation were not according to any mining rule. (2 Estee's Pleading and Practice, sec. 2257; Table Mountain Tunnel Co. v Stranahan, 20 Cal. 198.) Work done outside, in immediate proximity to the claim, is a sufficient possession. (2 Estee's Pleading and Practice, sec. 2257; McGarrity v. Byington, 12 Cal. 426; English v. Johnson, 17 Cal. 107, 76 Am. Dec. 574.) If the possession is constructive, the extent of the claim or boundaries should be in some manner indicated or defined. (Plume v. Seward, 4 Cal. 94, 60 Am. Dec. 599, and note; Garrison v. Sampson, 15 Cal. 93; Borel v. Rollins, 30 Cal. 408; Huey v. Smith, 3 Pa. St. 353; Ellicott v. Pearl, 10 Pet. 412.) Plaintiff in ejectment need not, in his complaint or in the proofs in support thereof, negative the allegations of defendant's answer, or disprove his title. The defendant must show his right affirmatively on his defense. (Mining Co. v. Marsano, 10 Nev. 379; Golden Fleece etc. Min. Co. v. Cable Consolidated etc. Min. Co., 12 Nev. 320.) The entries of the defendants for the purpose of making survey for a patent or for planting the post were in themselves sufficient acts of ouster to maintain ejectment. (Sears v. Taylor, 5 Morr. Min. Rep. 318.) When neither party establishes title to the ground in controversy, judgment cannot be for either party, and suit must be dismissed. (Mining Co. v. Brown, 21 F. 167; Jackson v. Roby, 109 U.S. 440, 3 S.Ct. 301.)

F. Ganahl, G. W. Stapleton and Albert Allen, for Respondents.

No appeal lies from a judgment of nonsuit. (Civ. Code, secs. 354, 355; Kimple v. Conway, 69 Cal. 71, 10 P. 189.) Such judgment is not on merits, and is not final. (Gates v. McLean (Cal.), 9 P. 938; Clapp v. Thomas, 5 Allen, 158; Merritt v. Campbell, 47 Cal. 545.) The answer of defendants denies the ouster of plaintiff, and therefore if plaintiff failed to prove such ouster, a nonsuit was proper. (Association v. Willard, 48 Cal. 614; Miller v. Chandler, 59 Cal. 540; Shaeffer v. Matzen, 59 Cal. 625; Pope v. Dalton, 31 Cal. 218; Brown v. Brackett, 45 Cal. 167.) Possession of a mining claim depends upon location thereof, and not location from possession. (Belk v. Meagher, 104 U.S. 287, 288; Hauswirth v. Butcher, 4 Mont. 307, 1 P. 714; McKinstry v. Clark, 4 Mont. 370, 1 P. 759.) A defendant in ejectment who claims title to a large tract of land, including a smaller tract, for which plaintiff sues, and to which he shows title, cannot establish an adverse possession of the land of plaintiff by proving actual possession of a portion of a larger tract not extending to any of the land claimed by the plaintiff. (Kimball v. Stormer, 65 Cal. 116, 3 P. 408.) One in actual possession of real estate cannot maintain ejectment against a person not in possession. (Carmichael v. Argard, 52 Wis. 508, 9 N.W. 470.)

HAYS C. J. Buck and Broderick, JJ., concurring.

OPINION

HAYS, C. J.

This action was commenced pursuant to the provisions of section 2326 of the Revised Statutes of the United States and the act of March 3, 1881, amendatory thereof, to recover the possession of specific real property. The plaintiffs allege in the complaint, among other things: "1. That they were citizens of the United States," which was admitted by the defendants. "2. That the plaintiffs now are, and ever since the sixteenth day of August, 1884, have been, through their grantors and predecessors in interest, the owners and entitled to the possession of that certain tract or parcel of mining ground known and called the 'Lalande claim,' and [describing the same] containing an area of thirteen and eighteen hundredths acres." This the defendants deny. "3. That on the sixth day of November, 1875, the said Scott McDonald and George P. Cater have made an application in the United States land office at Lewiston, Idaho, for a United States patent for a certain mining claim called the 'Poorman lode and mining claim,' and have caused a survey of the same to be made, upon which said application for a patent is based, and which said survey overlaps a portion of the land above described as belonging to the plaintiffs herein, and which portion, so covered by said survey and application for patent, is described by metes and bounds as follows, to wit [the premises are here described, containing an area of six and forty one-hundredths acres of land]." The defendants admit the making of the application for patent for the mining claim called the "Poorman lode and mining claim," and the survey thereof, and that it includes the aforesaid land described in subdivision 3 of the complaint, but deny that the same, or any part thereof, belongs to the plaintiffs, or either of them. "4. That on the sixth day of November, 1885, the said Scott McDonald and George P. Cater, by the order of the register of the land office, caused notice of their said application to be published, notifying all persons claiming adversely any portion of the mining ground covered by the Poorman lode mining claim, as surveyed, to file their adverse claim," etc.; that the plaintiffs filed their adverse claim to the tract of mining ground hereinbefore described; that said claim was duly allowed; and this action is brought in support of this claim. This, not being denied by the answer, stands admitted. "5. That, while the plaintiffs were such owners of the aforesaid demanded premises, seised, possessed, and entitled to the possession of the same, the said defendants afterward, to wit, on or about the sixth day of November, 1885, and before the commencement of this suit, and without right or title, entered into possession of the said hereinbefore described tract of mineral land, mining claim, and location, the demanded premises, and ousted and ejected plaintiffs therefrom, and ever since said day and now, unlawfully withhold possession thereof from the plaintiffs, to their damage," etc. This the defendants deny.

The case being brought to hearing, a jury was called to try the issue. Various questions propounded by plaintiffs were excluded by the court, which ruling is now assigned as error. When the plaintiffs rested, upon motion of defendants the court ordered a nonsuit, and judgment of nonsuit and for costs was duly entered against the appellants; from which an appeal is brought to this court. The respondents ask to have the appeal dismissed, on the ground that no appeal lies from a judgment of nonsuit.

Section 1869 of the Revised Statutes of the United States provides for the appellate jurisdiction of this court pursuant to such statute. Section 642 of our Code of Civil Procedure was enacted, which provides that "an appeal may be taken to the supreme court from a district court (1) from a final judgment in any action or special proceeding." The term "final judgment" has been variously defined. One definition is: "A judgment which puts an end to the action, by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for." (3 Blackstone's Commentaries, 398.) Again, it has been defined to be "a judgment which determines a particular cause, and terminates all litigation on the same right." (1 Kent's Commentaries, 316.) A third definition is given to be "a judgment which cannot be appealed from, but is perfectly conclusive as to the matter adjudicated upon." (Snell v. Manufacturing Co., 41 Mass. 296, 24 Pick. 296; Foster v. Neilson, 2 Peters 253; Forgay v. Conrad, 47 U.S. 201, 6 HOW 201, 12 L.Ed. 404.)

In what sense, then, did the legislature use this term? By the common law in England a writ of error would lie from a judgment of nonsuit in the nisi prius courts to the king's bench, where costs were taxed in favor of defendant, and judgment entered thereon against the plaintiff. (3 Bacon's Abridgment, 325.) In this country the general rule seems to be that, in determining the question whether or not a judgment is final, within the meaning of the various statutes in relation to appeals, matters of form are to be disregarded, and matters of substance alone considered, and that the judgment is "final" if it disposes of the action or proceeding in which it was made, so far as the court which made it is concerned, without reference to the question whether the claims of the parties may not be litigated in some other action or proceeding. (Weston v City of Charleston, 2 Peters 449; Yates v. People, 6 Johns. 337; Clason v. Shotwell, 12 Johns. 31; Belt v. Davis, 1 Cal. 134.) With this rule before them, our code...