Lee v. Watson

• Decision Date: 28 January 1895
• Parties: LEE et al. v. WATSON.
• Court: Montana Supreme Court

15 Mont. 228

LEE et al.

v.WATSON.

Supreme Court of Montana.

Jan. 28, 1895.

Appeal from district court, Gallatin county; F. K. Armstrong, Judge.

Action by Daniel Lee and another against George R. Watson. From an order overruling his motion to dissolve an injunction issued on application of plaintiffs, defendant appeals. Affirmed.

Appeal from an order overruling a motion to dissolve an injunction issued upon the application of plaintiffs. Plaintiffs, by complaint filed August 15, 1892, allege: (1) That on or about September 5, 1890, plaintiff Lee filed his application for a certain tract of land in Gallatin county, Mont., under the timber–culture act of the United States land laws; that said filing was accepted and plaintiff paid the fees therefor, and received a receiver's receipt for such payment; that plaintiff has, since the aforesaid date, been the owner and in possession of said land. (2) That on or about July 1, 1891, plaintiff Lee entered into a contract with plaintiff Weinbauer, by the terms of which contract Weinbauer was to cultivate the land, and put in crops for the year 1892, and that both plaintiffs were to jointly own the crops raised on said land for the year 1892, and do so own said crops. (3) That plaintiff Weinbauer, in order to carry out his said contract, on or about July 15, 1891, procured men, teams, and seed for the purpose of cultivating said land, and began to plow and harrow the same, but was prevented by the defendant from completing the same, and was prevented from seeding said land. (4) That defendant, on or about the ___ day of ___, filed an application for a contest for a part of the land entered by plaintiff Lee, as aforesaid, which said application for contest was dismissed by the officials of the land office. Defendant, well knowing that he had no ground for contest, and for the purpose of hindering plaintiff, and getting possession of said land, appealed to the commissioner of the general land office, which said appeal was on the 3d day of August, 1891, dismissed; and that said defendant had further harassed plaintiff, and kept him out of possession of said land, and appealed to the secretary of the interior, who on the 6th day of July, 1892, dismissed said appeal. (5) That, during the pendency of said application for contest, the defendant, against the protest of plaintiff, and against his will, trespassed on said land; that after the dismissal of the appeal by the commissioner of the general land office, on the 11th day of August, 1891, plaintiff Lee notified defendant, in writing, to discontinue his trespassing on said land, and to remove any improvements he may have erected thereon; but, for the purpose of delaying plaintiffs, the defendant disregarded the notice, and continued to trespass on said land, and plowed and harrowed a part thereof, against the will and protest of plaintiffs; that on or about September 1, 1891, defendant began to seed said land, and plaintiffs, on the 2d of September, 1891, again notified him to cease seeding said land, but defendant disregarded the notice, and, against the will of plaintiffs, continued to trespass on and seed said land. (6) That on or about August 13, 1892, there was standing on said land about 80 acres of wheat, sown as aforesaid, and being the joint property of plaintiffs, which said wheat was not, on that date, and is not now, in a fit condition to harvest and thresh, and if now harvested the same will be ruined as a wheat crop. (7) That on or about the 13th of August, 1892, defendant commenced cutting the aforesaid crop of wheat, and plaintiffs notified him to cease cutting and interfering with said crop, and that defendant refused so to do, and threatens to cut and remove the whole of said crop of wheat, and convert the same to his own use. (8) That the amount of said crop is estimated at 3,500 bushels, and worth the sum of $2,500. (9) That defendant is insolvent, and without property out of which execution could be satisfied, by reason of which, if the crop is cut in its present condition and removed, and converted by defendant to his own use, plaintiffs will suffer great and irreparable loss, and they are without an adequate remedy at law. There was a prayer for injunction restraining defendant from cutting and removing the wheat, and from trespassing on said land, and from interfering with plaintiffs' cutting and removing of the wheat, and for judgment for $2,500, and further relief. Appended to the complaint was Exhibit A, the receipt of the receiver for the money paid by Daniel Lee for his timber–culture entry. Exhibit B, dated July 6, 1892, was a decision of the commissioner of the general land office to the effect that Lee could enter the land. Exhibit D was a written notification by plaintiffs to defendant, telling him to stop trespassing, and to immediately remove any improvements or effects he might have on the ground, and that, unless he did so, any improvements or crop would revert to the use and benefit of the plaintiffs. Defendant moved to dissolve the injunction, upon the ground that it was improperly issued; that no cause for the issuance of any injunction is stated in the complaint; that no such undertaking as is required by law was given of filed by the plaintiffs before the issuing of said injunction. The motion to dissolve was denied. From this order defendant appeals.

Luce & Luce, for appellant.

Will Fleischhauer, for respon...