St. Onge v. Day

• Decision Date: 11 May 1888
• Parties: ST. ONGE v. DAY.
• Court: Colorado Supreme Court

18 P. 278

11 Colo. 368

ST. ONGE v. DAY.

Supreme Court of Colorado

May 11, 1888

Commissioners' decision. Appeal from district court, Chaffee county.

This was an action against appellant by appellee for the use and occupation or rental value of certain land from November 29 1881, to the commencement of the action, being 28 months which was alleged to be of the value of $25 per month; and for trees and fences, of the value of about $70, alleged to have been taken by appellant from the land. In the year 1879 the land was a part of the public domain, and unoccupied except a right of way for the Denver, South Park & Pacific Railway thereon, 200 feet in width, which had been granted by congress for said railway purposes, and which had been and then was accordingly occupied and used for railway purposes. In that year, appellant went upon the land, and occupied about two acres thereof with wood-piles, charcoal kilns, and cabins; a portion of the same being on the said right of way. Afterwards, appellee made a pre-emption, filing upon the quarter section containing this land so occupied, and from which the said trees and fences were charged to have been taken. July 29, 1882, appellee proved up, paid, and obtained receiver's receipt or certificate for the land, in which the said right of way was excepted and reserved. Subsequent to appellee's filing, appellant also filed upon the same quarter, and contested, in the landoffice, appellee's right to the said quarter. There was some conflict in the evidence about the cutting of the trees and taking of the fences; the question being whether the parties cutting and taking the same were acting for appellant and in his behalf. It also appears from the evidence that there had been some talk of a compromise between the parties, and there was the testimony of two witnesses that appellant had promised to pay rent for the land so occupied if appellee obtained receiver's receipt. However, appellant in his testimony denied the same. And there was testimony showing the rental value of the premises occupied as aforesaid, and what portion thereof was of the railway right of way. The charge to the jury was as follows: '(1) The receiver's receipt is sufficient to vest title in plaintiff to the land described therein, and this title commenced at the time plaintiff first filed on the land in the land-office, claiming it as a pre-emption, and it is immaterial for what purpose said land was filed on. (2) If the jury believe from the evidence that defendant used and occupied any portion of the lands described in said receipt, or destroyed any fences thereon or caused or directed to be cut or destroyed any trees growing thereon, then they should assess plaintiff's damages at such sum as the use and occupancy of such part of such premises were reasonably worth for the time occupied and also such sum as the trees so cut or used, and the fence so destroyed, were reasonably worth. (3) The plaintiff is entitled to recover, as aforesaid, for such use by defendant since the filing of his pre-emption claim, and also for such damage, aforesaid, as accrued since that time, but not for use had or damages done before such filing. (4) Form of verdict: The jury, after finding and assessing plaintiff's damages under the instructions heretofore given, will answer the following question: What damages is plaintiff entitled to recover under the instructions and evidence, without allowing him anything for use and occupancy of any portion of the premises included in said right of way, being 100 feet on each side of central line of railway?' The jury found for the plaintiff, excluding railway right of way, in the sum of $210, and, including the same, in the sum of...