Orr v. Haskell

• Decision Date: 31 August 1874
• Citation: 2 Mont. 225
• Parties: ORR, appellant, v. HASKELL, respondent.
• Court: Montana Supreme Court

2 Mont. 225

ORR, appellant,

v.HASKELL, respondent.

Supreme Court of the Territory of Montana.

August Term, 1874.

Appeal from Third District, Lewis and Clarke County.

THE judgment was rendered by WADE, J. The following sections of the Civil Practice Act are referred to in the opinion:

“In actions respecting mining claims, proof shall be admitted of the customs, usages and regulations established and in force in the mining district embracing such claim; and such customs, usages and regulations, when not in conflict with the laws of this Territory, shall govern the decision of the action.” Civ. Pr. Act, § 504.

“Upon retiring for deliberation, the jury may take with them all papers (except depositions), accounts or account books, which have been received as evidence in the case.” Civ. Pr. Act, § 207.

TOOLE & TOOLE, for appellant.

The denials in the conjunctive in the answer admit that appellant was the owner and seized in fee of the premises in controversy. 2 Estee's Pl. 657, 781, and cases there cited; 3 Id. 48, 665, and cases there cited. The statute provides that every material allegation in the complaint, not specifically denied in the answer, shall be deemed admitted on the trial. Civ. Pr. Act, § 65.

The answer does not deny appellant's right of possession, and right of possession is sufficient to maintain the action. No abandonment or forfeiture is pleaded. These defenses must be pleaded specially against a seizure in fee, when prior possession is not denied. There is no evidence of abandonment.

Was there a forfeiture under the laws of the district? No forfeiture can be had, if the laws do not provide for it; forfeitures are odious in law and never occur by implication. McGarrity v. Byington, 12 Cal. 426;English v. Johnson, 17 Id. 117;Bell v. Bed Rock T. & M. Co., 36 Id. 214.

No adverse possession is claimed during the time limited by the statute, and the statute of limitation is not relied on.

The property once admitted to be in appellant can only be lost by gift or sale, abandonment, forfeiture or adverse possession. Nothing of this nature is proved.

The new matter in the answer does not show adverse possession. 2 Estee's Pl. 23, 26, 912, 929, and cases there cited.

The admission of the mining laws in evidence, for the jury to construe, is error. Fairbanks v. Woodhouse, 6 Cal. 433;Dutch F. W. Co. v. Mooney, 12 Id. 534.

The record shows the ground in dispute was laid over May 14, 1870, and respondents jumped it on the 20th following. On this account they were trespassers and their action could not ripen into a right.

G. G. SYMES and CULLEN & COMLY, for respondents.

Appellant's objections to the sufficiency of the answer come too late. He went to trial as if the denials were good and conducted his side as if every allegation of the complaint was denied. Appellant thereby made the denials good and sufficient. White v. Spencer, 14 N. Y. 247;Wall v. Buffalo W. Works, 18 Id. 119;Elton v. Markham, 20 Barb. 343;Seely v. Engell, 3 Kern. 542; Daniels v. Andes I. Co., 2 Mont. 78.

The assignment of errors by appellant is wholly insufficient. Griswold v. Boley, 1 Mon. 545.

The grounds alleged for a new trial, which require affidavits, must be disregarded. They are not supported by affidavits. Civ. Pr. Act, § 234.

Appellant failed to comply with the rules of the district, and the jury could reasonably find an abandonment therefrom. King v. Edwards, 1 Mon. 235;St. John v. Kidd, 26 Cal. 264.

Abandonment need not be pleaded, but is admissible under a denial of title. Bell v. Bed Rock T. & M. Co., 36 Cal. 214;Willson v. Cleaveland, 30 Id. 192.

The book containing the mining laws was properly admitted in evidence. Civ. Pr. Act, § 504. This book is the best evidence of the existence of the written rules.

SERVIS, J.

This was an action to recover possession of certain placer mining ground described in the complaint as situate in “Helena Hill District, Lewis and Clarke county, Montana Territory.” The complaint also alleged that plaintiff was the owner thereof, and seized in fee; that defendants ousted him from the possession and wrongfully and unlawfully withheld the same.

The defendants, by answer, substantially denied all the allegations of the complaint, and averred that they were possessed of and the owners of 600 feet of the property in question, describing the same.

Upon this state of the pleadings, and without objection, the parties proceeded to trial to a jury. After the plaintiff had rested, the defendants, amongst other evidence, offered a book containing the rules and regulations of the miners in said Helena Hill mining district, which the court admitted over the objection and exception of plaintiff.

After the defendants had rested, the court instructed the jury precisely as requested by the respective parties, and without objection or exception by either; and the jury rendered their verdict for the defendants. Whereupon the plaintiff moved for judgment non obstante veredicto, which the court overruled, without objection or exception.

The plaintiff then moved for a new trial on the following grounds, viz.:

1. Irregularity in the proceedings of the court, by which plaintiff was prevented from having a fair trial.

2. Accident and surprise, which ordinary prudence could not guard against.

3. Insufficiency of the evidence to justify the verdict, and that the same was against the law.

4. Errors of law occurring at the trial and excepted to by plaintiff.

5. Error of the court in admitting and submitting miners' rules, regulations and customs to the jury.

6. That the verdict is against the law and the evidence.

So far as respects the first two errors assigned, this court cannot consider, as the same is not supported by affidavits, as required by the 234th section of the Code.

As to the third and sixth errors assigned, which are of one and the same import, viz.: Insufficiency of evidence to warrant the verdict, and that the same is against the law of the case, we will consider together.

The law of the case was...