Miner v. Cook

Citation288 P. 1016,87 Mont. 500
Decision Date11 June 1930
Docket Number6619.
PartiesMINER v. COOK et al.
CourtMontana Supreme Court

Appeal from District Court, Judith Basin County; Edgar J. Baker Judge.

Ejectment action by R. U. Miner against Chan L. Cook and others. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Earl Wineman, of Stanford, and Slattery & Tighe, of Great Falls for appellant.

Belden & De Kalb and Merle C. Groene, all of Lewistown, for respondents.

MATTHEWS J.

The plaintiff, R. U. Miner, has appealed from a judgment of nonsuit in an ejectment action brought by him against Chan L Cook, John Harris, and Security Trust Company of Freeport, a corporation.

The pleadings and undisputed facts adduced show that the plaintiff is, and has been since 1912, the owner of the record title to the northeast 1/4 of the northeast 1/4 of section 31, and the northwest 1/4 of the northwest 1/4 of section 32, in township 16 north of range 12, east of the Montana principal meridian, while the defendants hold title to the two 40-acre tracts lying immediately north of plaintiff's land. The holdings of plaintiff and defendants would, therefore, be divided by an imaginary line running east and west, or a section line.

The complaint alleges that in 1925 defendants wrongfully and unlawfully entered upon and ousted and ejected plaintiff from a portion of his land, which is therein described by metes and bounds, and continue to withhold possession thereof from him. The key to this contention is that, for more than twenty years prior to the commencement of the action, the two ranches have been separated by a county road approximately on the section line between the lands of plaintiff and defendants; the contention of plaintiff being that the road departs from the line and leaves the tract particularly described to the north of the north line of the road.

The defendants allege that no portion of the 40-acre tracts to which plaintiff holds title lies north of the road, but, if any portion thereof does lie north of the road, defendants have acquired title thereto by adverse possession in them and their predecessors in interest of their two 40-acre tracts for more than ten years prior to the commencement of the action.

As plaintiff alleges that he was ousted from possession in 1925, and that defendants have since that time remained in possession of the tract in dispute, his action is properly one in ejectment. Milligan v. Savery, 6 Mont. 129, 9 P. 894. The complaint is in the form heretofore approved in such an action by this court, and is sufficient. Peter v. Stephens, 11 Mont. 115, 27 P. 403, 28 Am. St. Rep. 448; Baker v. Butte Water Co., 40 Mont. 583, 107 P. 819, 135 Am. St. Rep. 642.

The vital allegations of this complaint are (a) plaintiff's ownership and right to possession of the tract of land described in the complaint and from which it is alleged he was ejected by defendants, and (b) wrongful and unlawful ouster and ejectment by the defendants. Proof of both of these vital allegations is necessary in order to make out a case. Herbert v. King, 1 Mont. 475.

Section 9018, Revised Codes 1921, declares that "in every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title for ten years before the commencement of the action."

Proof therefore, that plaintiff acquired title to the two 40-acre tracts of which the parcel in dispute is...

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