Park Saddle Horse Co. v. Cook

• Decision Date: 08 April 1931
• Docket Number: 6750.
• Citation: Park Saddle Horse Co. v. Cook, 89 Mont. 414, 300 P. 242 (Mont. 1931)
• Parties: PARK SADDLE HORSE CO. v. COOK.
• Court: Montana Supreme Court

300 P. 242

89 Mont. 414

PARK SADDLE HORSE CO. v. COOK.

No. 6750.

Supreme Court of Montana

April 8, 1931

Appeal from District Court, Glacier County; R. M. Hattersley, Judge.

Action in forcible detainer by the Park Saddle Horse Company against George Cook. Judgment for plaintiff, and defendant appeals.

Affirmed.

Arnot & Doyle, of Conrad, for appellant.

Walchli & Korn, of Kalispell, for respondent.

GALEN J.

This is an action in forcible detainer involving land in Glacier county. It was instituted June 23, 1928. In the complaint of the plaintiff it is alleged "that on or about the 22nd day of May, 1928, and during the absence of the plaintiff from the premises *** the above named defendant, George Cook did wilfully and unlawfully and without permission of *** the plaintiff enter upon the lands *** and took possession of the same; that at the time of such entry *** and for more than five days previous thereto, the plaintiff corporation was the occupant and in the peaceable possession of and entitled to the possession" of the land described. It is averred that demand for possession of the property was made upon the defendant by the plaintiff on or about June 4, 1928, and the defendant's refusal to surrender possession and occupancy of the land up to the time of the institution of this action. The defendant demurred to the complaint, which upon stipulation of counsel was overruled by the court. Thereupon the defendant filed his answer constituting a general denial, and by way of affirmative defense alleged that he is an Indian and a member of the Blackfeet Tribe residing within the confines of the Blackfeet Indian Reservation, and the portion thereof embraced within the county of Glacier; that the land involved is within the confines of the Blackfeet Indian Reservation and is unpatented and constitutes no part of the public domain of the United States of America, but is reserved by the Bureau of Reclamation of the Department of the Interior and as such is subject to the exclusive control of the Secretary of the Interior and the exclusive jurisdiction of the United States of America, and that, because of the nonuse of the land by the Department of the Interior, it reverted to the Blackfeet Tribe, and is now held by the United States for the use and benefit of the Blackfeet Tribe of Indians, and further that the defendant entered into the possession of the land with the consent of the Tribal Council of the Blackfeet Indian Tribe. The reply of the plaintiff denies generally the allegations of the answer except that it is admitted that the Bureau of Reclamation of the Department of the Interior of the United States has the exclusive right and control over the land, subject to a lease thereof to the plaintiff dated January 31, 1921, and a renewal thereof.

By agreement of counsel the cause was tried before the court without a jury, after the conclusion of which the court made its findings of fact and conclusions of law in favor of the plaintiff, and judgment was entered accordingly, from which the defendant has appealed. There is no bill of exceptions; the record on appeal consisting only of the judgment roll.

The court found that at all times mentioned in the plaintiff's complaint, and ever since May 1, 1921, the plaintiff has had and now has a lease from the Bureau of Reclamation, Department of the Interior of the United States, covering all of the land described in plaintiff's complaint; that the lease was in full force and effect at the time of the defendant's entry upon the property; that the lease expired May 1, 1928, but contained a renewal provision, and pursuant thereto a second lease was executed by the Bureau of Reclamation to the plaintiff, effective May 1, 1928; that the second lease has never been terminated, and that the plaintiff has had a lease to all of the property described in plaintiff's complaint ever since May 1, 1921, without interruption; that on the 15th day of April, 1928, and at the time of the defendant's entry, and for more than six years immediately prior thereto, the plaintiff was the occupant of and in the peaceable and undisputed possession of the land and premises described in plaintiff's complaint; that on the 15th day of April, 1928, and during the absence of the plaintiff from the premises, the defendant, George Cook, without the consent or permission of the plaintiff, entered upon the property and took possession thereof; that on or about the 4th day of June, 1928, and on several occasions thereafter, and prior to the commencement of this action, the plaintiff made demand upon the defendant to surrender said land and premises to the plaintiff; that the defendant refused to surrender the same or any part thereof, for a period of more than five days after demand made on June 4, 1928, and prior to the commencement of this action, and that ever since such demand the defendant has remained in possession of and has detained the property and now continues to detain the same. And as a matter of law the court concluded that the defendant, George Cook, unlawfully entered upon the land; that at the time of the commencement of this action he forcibly detained the same and now continues to so forcibly detain it; that he is guilty of forcible detainer thereof; and that the plaintiff is entitled to immediate restitution thereof and its costs incurred in this action.

Two questions are presented for decision by the defendant's assignments of error, viz.: (1) Does the plaintiff's complaint state a cause of action? and (2) Do the findings support the judgment?

1. The complaint is predicated on subdivision 2 of section 9888 of the Revised Codes of 1921, which reads as follows "Every person is guilty of a forcible detainer ***...