Morse v. Boyde

• Decision Date: 30 November 1891
• Citation: 28 P. 260,11 Mont. 247
• Parties: MORSE v. BOYDE.
• Court: Montana Supreme Court

28 P. 260

11 Mont. 247

MORSE v. BOYDE.

Supreme Court of Montana

November 30, 1891

Appeal from district court, Deer Lodge county; W. H. THIPPET Special Judge.

Action by George W. Morse against John Boyde and another for forcible entry and detainer. Judgment for defendants. Plaintiff appeals. Affirmed.

Forbis & Forbis, for appellant.

Cole & Whitehill, for respondents.

BLAKE C.J.

The complaint alleges that the plaintiff, "on the 23d day of May, 1887, *** was peaceably possessed of and had inclosed the following described property: [Description.] That while plaintiff was so peaceably possessed of said property the defendants, on or about the 5th day of June, 1888, unlawfully entered upon, turned the plaintiff out of same, and still unlawfully detain the same; to plaintiff's damage in the sum of three hundred dollars." These allegations are denied by the answer. The action was tried by the court without a jury, and the following findings of facts were made: "(1) That on the 4th day of June, 1888, the plaintiff was in the actual, peaceable, and quiet possession of the premises described in the complaint, and which had continued for a number of years; and which possession consisted in having the premises partially inclosed with a fence, in having a cabin on the ground, in cutting the hay which had grown upon it for the year previously, and in wintering his sheep there, and in keeping one or two employes living on the premises in the cabin, and in exercising general control and dominion over the premises. The plaintiff did not reside upon the premises but visited them every two or three months. The premises were unsurveyed public domain. (2) That on the 4th day of June 1888, the defendant John Boyde entered upon a portion of the premises, and with the assistance of his co-defendant erected a cabin thereon. This was without the knowledge or consent of the plaintiff, and in his absence. But the said John Boyde had been invited to go upon the premises, and locate and take up the same, by one Frank Waite, who was then residing upon the premises as a servant and employe of the plaintiff, but which invitation was without the knowledge or consent of the plaintiff, the said Waite acting in fraud of the plaintiff's rights. The defendant John Boyde entered the premises under the belief that they had belonged to one Boswell, who had recently died, but who had occupied them as the employe of the plaintiff. (3) That subsequently, about the 10th of June, 1888, the plaintiff went to the premises and demanded the possession of the said defendants, and objected to their retaining the possession of the premises or any part thereof. (4) That the defendant John Boyde refused to deliver the premises, or...