Pool v. Baker
| Decision Date | 25 January 1916 |
| Docket Number | 835 |
| Citation | 154 P. 328,23 Wyo. 539 |
| Parties | POOL v. BAKER |
| Court | Wyoming Supreme Court |
Rehearing Denied 23 Wyo. 539 at 547.
ERROR to the District Court, Sheridan County; HON. CARROLL H PARMALEE, Judge.
Action by W. H. Pool to restrain Fred M. Baker from removing a fence, which enclosed plaintiff's lands with a portion of defendant's homestead claim, in which action the defendant sought by cross-petition to enjoin plaintiff from interfering with the removal of the fence. From a judgment for defendant, plaintiff brings error.
Affirmed.
F. W Byrd and S. P. Cadle, for plaintiff in error.
The fence belonged to plaintiff in error and he had been in possession of the land for many years. The rules of the Land Department require an entryman to make oath that the land sought for entry is not occupied or appropriated by another at the time of the entry. (Lyle v. Patterson, 228 U.S. 211.) The attempted removal of the fence by defendant in error was a trespass. The certificate of the county surveyor is in the nature of a judicial finding and should not be accepted as controlling the question of boundary; plaintiff in error was in possession and no other element of title was involved in the case. Equity will enjoin a trespass, especially a repeated trespass. .) And especially where it will prevent a multiplicity of suits. .) And this even though the injury is not irreparable and the remedy at law may be adequate. And even though the trespasser be solvent. .) Section 1294, Comp. Stats, 1910, does not clothe the county surveyor with judicial power.
Gogerty & McNally, for defendant in error.
The boundary survey was made in accordance with the provisions of Sec. 1294, Comp. Stats. 1910, and the surveyor's certificate stands unchallenged; the fence enclosed a portion of defendant's homestead entry and as such was an unlawful enclosure; the doctrine of peaceful possession for many years does not apply here, as the enclosure was unlawful. (Act of Congress, Feb. 25th, 1885, Ch. 149; 23 Stats. 321; U. S. Comp. Stats. 1901, p. 1524; 32 Cyc. 794; Clemons v. Gillette (Mont.), 83 P. 879.) One who owns land can remove a fence wrongfully placed thereon by another. (Stillwell v. Duncan (Ky.), 39 L. R. A. 863.) And it is not an act of trespass. (Curies v. Jones (Iowa), 96 N.W. 766.) A homestead entryman acquires the right of possession. (32 Cyc. 818; Tiernan v. Miller & Leith (Neb.), 96 N.W. 661; Hasty v. Bonness (Minn.), 86 N.W. 896; Brown v. Donnelly (Okla.), 59 P. 974.) Argument as to peaceful possession under an unlawful enclosure is absurd, when it is remembered that the fact of enclosure was an act upon which a government prosecution could be predicated. The entire question is disposed of and our contention supported by the case of Reservation State Bank v. Peter Holst, 17 S.D. 240, 70 L. R. A. 799.
Cadle & Byrd, in reply.
Counsel misconceives the nature of plaintiffs case; this is a boundary line dispute. We contend that the county surveyor is not clothed with judicial power under Section 1294, Comp. Stats. 1910. The Act of Congress referred to and cases relating to the act are not in point. Other cases cited refer to the rights of a homesteader, when once in possession. The Iowa case of Curies v. Jones, 96 N.W. 766, is against defendant's contention. Injunction will lie until the possessory rights are ascertained. (12 A. & E. Ann. 32.) Defendant's contention defies the ancient right of squatter's sovereignty.
In this case the plaintiff in error, who was the lessee and in possession of section 36, township 56, range 79, in Sheridan County, sought to enjoin the defendant in error, whose homestead entry included the southwest quarter of section 25, same township and range, from removing a fence which plaintiff alleged was situated upon the line between their respective lands. The defendant denied that the fence was on the line, and alleged that it was several hundred feet north thereof and upon his homestead entry, and that he had repeatedly requested the plaintiff to remove it, which he neglected and refused to do, and that he was removing the same for the purpose of placing it on the line; and by cross-petition sought to enjoin plaintiff from interfering with his so doing. At the request of plaintiff the district court made in writing its finding of facts and conclusions of law. The case has been brought to this court upon the pleadings, findings of facts, and conclusions of law, the evidence not being brought up.
The only questions, therefore, that can be considered are whether the conclusions of law and the...
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Pool v. Baker
...539 POOL v. BAKER No. 835Supreme Court of WyomingJanuary 25, 1916 23 Wyo. 539 at 547. Original Opinion of January 25, 1916, Reported at: 23 Wyo. 539. Rehearing OPINION ON PETITION FOR REHEARING. Per Curiam. A petition for a rehearing has been filed in this case. At the time the opinion was ......