Lindblom v. Rocks

• Decision Date: 18 June 1906
• Docket Number: 1,248.
• Citation: 146 F. 660
• Parties: LINDBLOM v. ROCKS.
• Court: U.S. Court of Appeals — Ninth Circuit

146 F. 660

LINDBLOM v. ROCKS.

No. 1,248.

United States Court of Appeals, Ninth Circuit.

June 18, 1906

J. C Campbell, W. H. Metson, F. C. Drew, C. H. Oatman, and Ira D Orton, for plaintiff in error.

The plaintiff in error was the defendant in an action brought by the defendant in error to recover the possession of a town lot in the city of Nome, Alaska, and for damages for the wrongful withholding of the possession thereof. In her complaint the defendant in error alleged that her estate in the premises was an estate in fee simple, except for the paramount title of the United States, being a legal right to the exclusive possession, use and enjoyment of said premises that on or about August 12, 1899, while said land was still a part of the vacant, unoccupied, and unappropriated lands of the United States and open for location and occupation, she being a citizen of the United States over the age of 21 years, peaceable and lawfully entered upon and took possession of said premises and continued to occupy the same until on or about the 1st day of May, 1900, when she was ousted by the defendant. The answer, after denying the material allegations of the complaint, alleged as a first separate defense that on November 22, 1899, the lot was vacant and unoccupied government land, and on that date Fred Tronsen entered and located the same as a town lot and built a house thereon, that on May 2, 1900, he with one J. A. Westby who had acquired an interest therein, conveyed the same to J. H. Lampe; that afterwards on May 14, 1900, J. H. Lampe for a consideration of $1,500, sold and conveyed the same to the plaintiff in error. For a second separate defense the answer alleged that on or about May 14, 1900, the plaintiff in error found one J. H. Lampe in the peaceable and exclusive possession of said lot, claiming to hold and own the same as a town lot; that said Lampe had constructed on said lot a dwelling house, and that he and his grantors and predecessors in interest had held, possessed, occupied, and used the same ever since it was vacant and unoccupied public lands of the United States; that the plaintiff in error in good faith purchased said lot from said Lampe and paid therefor $1,500; and that the plaintiff in error was entirely ignorant of any claim to said lot by the defendant in error, and did cause due and diligent inquiry to be made to ascertain if any person other than said Lampe had or made any claim to the said lot; that in the months of July and August, 1900, in good faith, and at the expense of more than $1,000, the plaintiff in error built and constructed a dwelling house on said lot without any knowledge of any claim to the said lot by the defendant in error, and that the defendant in error never did until long subsequent to the building and completion of said dwelling house notify the plaintiff in error of her said claim to said property or make any claim to said property. For a third separate defense the plaintiff in error, after alleging the facts set forth in the second separate defense, averred that, prior to the time when he purchased the said lot from Lampe, the defendant in error had long since abandoned any claim she theretofore had or made to said lot or any part thereof. Upon the issues so raised, the cause was tried before a jury, and a verdict was returned in favor of the defendant in error, and a judgment was rendered adjudging her to be entitled to the possession of said premises and to damages in the sum of $1,250 for the wrongful detention of the same.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge, after stating the case as above, .

We find no merit in the contention that the trial court should have instructed the jury to return a verdict for the plaintiff in error. The evidence was not disputed that the defendant in error arrived in Nome, July 14, 1899, and that on August 12th of that year she staked the lot in question and placed a location notice thereon, and that thereafter she dug a ditch around the lot, put a fence around it, and put up thereon a tent with a board floor and frame, and that she lived on the lot until November 1, 1899, when she left Nome for the States. She testified that she left the lot in charge of Capt. Tronsen, who lived near by, and also asked a friend, a Mrs. Rauna, to watch the lot for her; that she left in the tent personal property, consisting of a bed, bedding, stove, cooking utensils, chairs, and a table, all in charge of Capt. Tronsen, who promised to look after them until she returned the following spring; that she said to him: 'All these things I leave here to hold my lot'; that on June 14th, 1900, at the opening of navigation, she returned to Nome, went to her lot and found it occupied, and found that it had been sold to others. She testified that she did all that she could in the summer of 1900 to regain possession of her lot; that there were four persons who said that they owned the lot; that in November of that year she brought suit against one of them, and recovered a judgment; that the plaintiff in error told her that he had nothing to do with the lot and to look to Lampe; that Lampe told her he had a lawyer and was going to fight; that both Lampe and the plaintiff in error refused to do anything about it; that in 1901 she was ill and had to leave Nome; that she came back in 1903 and was, and for a long time remained, sick. The only testimony in the record tending to show that the defendant in error intended to abandon her property when she left it in the fall of 1899, is that of Capt. Tronsen who said that when she went away, she told him that if he wanted the lot he could take it. In view of the admissions made by Capt. Tronsen on his cross-examination, it is not surprising that the jury discredited his testimony and found for the defendant in error. But whether his testimony was true or false, there was clearly sufficient evidence to go to the jury to sustain the claim of the defendant in error to the right of possession of the property, and, if credited, to negative the contention that she at any time abandoned or intended to abandon it.

It is assigned as error that the court, after instructing the jury that the plaintiff in the action must establish by a preponderance of the evidence each of the allegations of her complaint, and that otherwise the verdict should be for the defendant, proceeded to charge as follows:

'On the other hand the defendant must, by a preponderance of the evidence in the case, establish the abandonment set up as a defense to entitle him to your verdict. If he do not so prove an abandonment, your verdict should be for plaintiff.'

It is urged against this instruction that it gave the plaintiff in error the benefit only of the defense of abandonment, and that it excluded consideration of his other defenses. It is evident, however, from reading the instruction which is complained of, that it was directed solely to the particular defense of abandonment, and the jury must have so understood for the court elsewhere fully instructed them that if they believed from the evidence that Lampe found Tronsen in the quiet, peaceable, and exclusive possession of the lot, residing thereon, and claiming to own the same, and that Lampe in good...