McKay v. McDougal

• Decision Date: 12 May 1897
• Citation: 48 P. 988,19 Mont. 488
• Parties: McKAY v. McDOUGAL.
• Court: Montana Supreme Court

48 P. 988

19 Mont. 488

McKAY v. McDOUGAL.

Supreme Court of Montana

May 12, 1897

Appeal from district court, Madison county; Frank Showers, Judge.

Action by Alexander McKay against William J. McDougal. From a judgment for defendant, plaintiff appeals. Reversed.

Plaintiff alleges that he is a citizen of the United States, and the owner of, and entitled to the possession of, and was in the possession of, a certain placer claim, until his possession was interfered with by the defendant, as hereinafter stated. Then follows a description of the placer claim situated in the Union mining district, Madison county, Mont. He alleges that while he was the owner and in the possession of the aforesaid placer mining claim, in June, 1893, and without his knowledge or consent, the defendant wrongfully and without right entered upon the premises, and extracted gold therefrom, to plaintiff's damage; that thereafter again defendant entered upon the property, and took gold therefrom and threatens to continue said trespasses; and that, if they are continued, great damage will result to the property, and that actions at law will not protect the plaintiff's rights without a multiplicity of suits, and that defendant is wholly insolvent, and unable to respond in damages. For a further cause of action plaintiff averred that about the year 1893 the defendant claims to have located as a placer claim a portion of the premises described in the complaint, and has filed a pretended notice of location thereof with the county clerk of Madison county, and is asserting title and right of possession to a portion of the ground involved by virtue of said pretended location and notice of location hereinbefore mentioned; but that defendant's said claim is without right, but that the same, while upon the records of Madison county, casts a cloud upon plaintiff's title and right of possession. The prayer is for damages sustained, and a perpetual injunction enjoining defendant from working, or otherwise trespassing upon the said mining claim, or asserting any right or title thereto, and for a decree adjudging defendant's pretended claim void, and for further relief. The defendant denied the ownership and right of possession of the premises described in the plaintiff's complaint, denied his entry upon the premises as alleged, and denied all damage. In answer to the second cause of action the defendant admitted that in 1893 he located a placer claim, and a portion of the premises in controversy, and filed his declaratory statement and notice with the county clerk of Madison county, but denied that such action was without right, or that it cast a cloud upon plaintiff's title. For further defense defendant averred that the plaintiff, McKay, and his predecessors in interest have no right, title, or interest in the placer mining claim attempted to be described in the complaint, because at the time of their attempted location thereof the same was not public domain of the United States, and had been already appropriated; that about June, 1876, one Sholes discovered placer within the limits of the ground, and proceeded to locate a placer claim, and did locate one, and marked the boundaries thereof by posting monuments set at the different corners of the claim, so that the same could be readily traced, and posted the notice containing the date of location, name of the locators, name of the claim, and such a description thereof with reference to natural objects as that its boundaries could be readily ascertained; and that in June, 1876, said Sholes and his associates entered into possession of said placer mining claim, and proceeded to mine the same, and were the owners and in possession thereof at the time of the pretended location by said plaintiff and his predecessor in interest, Abe ___. Defendant then averred that plaintiff had abandoned the claim a long time prior to the commencement of this suit, and had failed to perform the annual work necessary to be performed from the year 1877 up to and including the year 1894. For further defense defendant set up a location by himself made July 22, 1893, of a placer claim known as the "Humbug Claim," pleading a specific description of said Humbug placer claim, and averring that he filed an amended notice thereof for the purpose of correcting errors in the original notice, and that ever since July 22, 1893, except when interfered with by the injunction of the district court, he was the owner of, in the possession of, and entitled to the possession of, said placer mining claim, and was in the actual possession thereof, and mining the same, when the injunction in this suit was served upon him. Defendant then averred that the plaintiff in May 1894, and at other times, wrongfully entered upon said placer location of defendant, and extracted placer gold therefrom and that he has been damaged by the trespasses of the plaintiff in the sum of $2,000. He prayed for damages, and a decree that he be declared the owner and entitled to the possession of said ground and for an injunction. The plaintiff, by replication, denied the allegations of the defendant in relation to the location or appropriation of the property by defendant or his predecessors, and averred that, if there was any such location, there was an abandonment of the same immediately thereafter, and that in 1877, the land was public domain when appropriated by plaintiff and his predecessors. Plaintiff denied all averments of abandonment and any entry without authority. The cause came on for trial. When the plaintiff offered evidence under the causes of action set forth in his complaint, the defendant objected, and the objection was sustained, whereupon the plaintiff's complaint was dismissed, and judgment entered in favor of defendant for costs. The plaintiff having elected to stand upon his complaint, he appeals from the judgment entered against him.

Smith & Word and J. E. Calloway, for appellant.

W. A. Clark, for respondent.

HUNT J. (after stating the facts).

The plaintiff has set forth in his complaint that he is now, and has been for some time, the owner of, and entitled to the possession of, and in the possession of, until interfered with by the defendant, a certain piece of placer mining ground, more fully described in the complaint. He then sets forth that the defendant claims the property by virtue of a pretended placer location, but that such location is without right, and casts a cloud upon plaintiff's title. The suit is brought for damages for trespass, and by separate statement to quiet plaintiff's title, and for further relief. The defendant denied the ownership and possession and right of possession of plaintiff, and pleaded a title to the premises under the location of the same as the Humbug claim and possession for a long time back. The replication denied the new matter in the answer. The district court held that the plaintiff's complaint was fatally defective. The only question before us now, therefore, is that of the sufficiency of plaintiff's pleading. Does it state a cause of action? We think it does. The allegations of the first part of the complaint state a cause of action in the nature of trespass to try title. The essential principles of pleading and forms of procedure governing this action are like those in actions in ejectment. Sedg. & W. Tr. Title Land, § 92; Greenl. Ev. § 303. If, therefore, the complaint under investigation was in its essential averments good in ejectment, it should be held sufficient in this action, unless in suits involving title to placer mining premises different rules of pleading control. The respondent cannot seriously controvert the sufficiency of the complaint herein under ordinary rules applicable to ejectment suits. It avers ownership, right of possession, and the fact of possession of the placer ground, an entry by defendant without consent of plaintiff, his mining thereon, and threat to continue to mine, and damages done by reason of the defendant's acts. This was more than enough, under the decision in Payne v. Treadwell, 16 Cal. 221, where Judge Field reviewed the earlier decisions of that state, and distinctly overruled those cases which recognized that some of the technical averments peculiar to the old form of ejectment were still necessary under the Codes. It was said in that case as follows: "Now, what facts must be proved to recover in ejectment? These only: That the plaintiff is seised of the premises, or some estate therein in fee, or for life, or for years, and that defendant was in their possession at the commencement of the action. The seisin is the fact to be alleged. It is a pleadable and issuable fact, to be established by conveyances from a paramount source of title, or by evidence of prior possession. It is the ultimate fact upon which the claim to recover depends, and it is facts of this character which must be alleged, and not the prior or probative facts which go to establish them. It is the ultimate facts,--which could not be struck out of a pleading without leaving it insufficient,--and not the evidence of those facts, which must be stated. It is sufficient, therefore, in a complaint in ejectment, for the plaintiff to aver, in respect to his title, that he is seised of the premises, or of some estate therein in fee or for life, or for years, according to the fact. The right to the possession follows as a conclusion of law from the seisin, and need not be alleged." The form of pleading has been expressly approved by this court in McCauley v. Gilmer, 2 Mont. 202, and in the opinion on a rehearing in Davis v. Clark, Id. 394, which was an action to try title and recover possession of a quartz lode claim, wherein it was held that in actions of ejectment it is sufficient for the plaintiff to aver that he is...