Ridpath v. Denee

• Decision Date: 29 April 1915
• Docket Number: 12258.
• Citation: 148 P. 15,85 Wash. 322
• Parties: RIDPATH v. DENEE.
• Court: Washington Supreme Court

148 P. 15

85 Wash. 322

RIDPATH v. DENEE.

No. 12258.

Supreme Court of Washington

April 29, 1915

Department 2. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by W. M. Ridpath against Louis H. Denee. From a judgment for plaintiff, defendant appeals. Affirmed.

Skuse &amp Morrill and Voorhees & Canfield, all of Spokane, for appellant.

Turner & Geraghty and D. W. Henley, all of Spokane, for respondent.

MOUNT J.

This is an action in forcible detainer. The cause was tried to the court and a jury, and resulted in a verdict and judgment of restitution in favor of the plaintiff. The defendant has appealed.

The principal facts under which the controversy arose are as follows: The plaintiff for more than 20 years prior to the 9th day of March, 1914, was in the peaceable and quiet possession of 75 acres of land in Spokane county. This land was under cultivation and was inclosed by a substantial fence. In the nighttime on March 9, 1914, the appellant without permission of the plaintiff, broke the inclosure and entered upon the lands. On the next morning the plaintiff ordered the defendant to remove therefrom, which the defendant refused to do. Thereafter, on the 27th day of March, the plaintiff notified the appellant in writing to remove from the lands. The defendant also refused to comply with this notice for a period of more than three days, whereupon this action was brought. The complaint alleged substantially these facts.

The defendant, in answer to the complaint, denied the plaintiff's peaceable possession as alleged, admitted that defendant was occuping the lands, that he was notified in writing to remove therefrom, and that he had failed and refused so to do. As an affirmative defense the defendant alleged, in substance, that the lands in question were unsurveyed, unappropriated public lands of the United States, and a part of the public domain, subject to settlement under the homestead laws of the United States; that on October 30, 1909, the defendant in good faith, for the purpose of making a homestead entry thereon and acquiring title thereto, made settlement upon the lands in question, has never abandoned the same, and is residing on the lands in good faith under the homestead laws; that, at the time of making said settlement, he was over 21 years of age, a native-born citizen of the United States, not the proprietor of more than 160 acres of land in any state or territory, and had never made entry of public lands under the homestead laws of the United States, and was qualified to make settlement upon and entry of public lands and to acquire title thereto; that, at the time the defendant made settlement and established his residence upon the lands, the plaintiff was not in possession of any part thereof, and claimed no right therein; that the plaintiff is not wrongfully and unlawfully, and without any right so to do, attempting to prevent the defendant from maintaining his residence thereon, and acquiring title thereto; that the lands described in the complaint are part of a contiguous body of lands containing 1,200 acres, which has never been surveyed by the government of the United States, and has never been disposed of by the government of the United States, but is unsurveyed and unappropriated government lands belonging to the United States, and open for settlement.

The plaintiff filed a motion to strike this affirmative defense, which motion was granted by the court. The appellant urges that the court erred in striking this affirmative defense, and in refusing to receive evidence of the facts therein stated. The statute (Rem. & Bal. Code, § 811) provides:

'Every person is guilty of a forcible detainer * * * who in the nighttime, or during the absence of the occupant of any real property (unlawfully) enters thereon, and who, after demand made for the surrender thereof, refuses for the period of three days to surrender the same to such former occupant. The occupant of real property within the meaning of this subdivision is one who, for the five days next preceding such unlawful entry, was in the peaceable and undisturbed possession of such real property.'

Section 825 provides:

'On the trial of any proceeding for any forcible entry or forcible detainer, the plaintiff shall only be required to show, in addition to a forcible entry complained of, that he was peaceably in the actual possession at the time of the forcible entry; or in addition to a forcible detainer complained of, that he was entitled to the possession at the time of the forcible detainer.'

These statutes are clearly peace statutes, and the issues in a case of this kind are but two: First, was the plaintiff, for five days prior to the entry of the defendant, in the peaceable and actual possession of the land; and, second, was the entry of the defendant a forcible entry and an unlawful detainer? The statute makes no provision for the trial of title or the right of possession in such a case. Other remedies are afforded by other statutes to try title or right of possession. This statute does not contemplate that a person, even though he be entitled to possession, may be force or stealth obtain possession, and thereby put upon the plaintiff the burden of proving the paramount title or a paramount right of possession. This court, in common with other courts, has frequently so held. Gore v. Altice, 33 Wash. 335, 74 P. 556; Chezum v. Campbell, 42 Wash. 560, 85 P. 48, 7 Ann. Cas. 921; Meyer v. Beyer, 43 Wash. 368, 86 P. 661; Dutcher v. Sanders, 20 Cal.App. 549, 129 P. 809.

In Gore v. Altice, we said:

'The forcible entry and detainer law has always been recognized, ever since its enactment, as a law in the interest of peace, or to prevent violations of the peace and acts of violence in contentions over the possession of real property. It is a provision for a speedy determination, not of any title to the real estate, or of the right of possession, but of the question of who was in actual possession, and if such actual possession was disturbed; and the only question is: Was the occupant in the actual and peaceable possession of the property at the time the possession was wrested from him? The statute provides that the occupant of real property, within the meaning of the law, is one who, for five days next preceding

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