Stettheimer v. City of Butte
| Decision Date | 23 May 1921 |
| Docket Number | 4324. |
| Parties | STETTHEIMER ET AL. v. CITY OF BUTTE. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Edwin M. Lamb, Judge.
Action by Joseph C. Stettheimer and others against the City of Butte. Verdict and judgment for the defendant, and from an order denying motion for new trial, the plaintiffs appeal. Affirmed.
Frank Woody, of Billings, B. K. Wheeler, of Butte, and A. A Grorud, of Helena, for appellants.
R. L Clinton, of Butte, for respondent.
This action involves the right of the defendant to use and occupy portions of the Frankie lode. The premises in dispute are traversed by the southern extension of Main street, and by Kaw avenue from its junction with Main street to its outlet into Front street.
The plaintiffs allege that they are the owners of the Frankie lode claim, and that defendant, without right, by force of arms, and against their will, entered into the possession of portions thereof, began, and are still hauling and depositing dirt thereon, and withholding possession thereof from plaintiffs under a pretended claim of right thereto. The prayer is that the defendant be restrained from further interference with their possession; that their title be quieted and the cloud thus cast thereon removed. Defendant's answer is that for more than 30 years immediately prior to April 30, 1913, as against the plaintiffs and all others, it has been in the sole notorious, exclusive, and adverse use and possession thereof as public streets and thoroughfares of the city known as Kaw avenue and Main street; and for a period of more than 10 years next preceding April 30, 1913, the people of the city of Butte and the public generally have used and enjoyed the portions in dispute as such. These averments are put in issue by plaintiffs' reply thereto. The case was tried by the court with the aid of a jury. Upon the evidence adduced, and under the court's instructions, the jury returned a general verdict in favor of the defendant, and judgment was entered thereon. Plaintiffs' motion for a new trial was denied, and this appeal is from that order.
In the brief and argument, appellants confine the issues for our consideration to the naked legal question of the sufficiency of the evidence to establish adverse user by the city for the period of 10 years next preceding the 30th day of April 1913. Despite the nature of the action, the case was submitted to the jury upon the evidence and the instructions of the court upon the law, upon which a general verdict for defendant was returned. Assuming, without deciding, that plaintiffs' title to the ground occupied was complete, nevertheless, if the defendant adduced proof sufficient to take the case to the jury upon the question of its adverse occupancy and use for the period prescribed by the statute (Revised Codes, §§ 6432, 6435), the findings of the jury are not to be disturbed on appeal--unless the evidence preponderates against them--for the reason that--
"Since the enactment of section 6253 of the Revised Codes, on appeals in equity cases, this court has observed the rule: The findings of the trial court will not be set aside unless there is a decided preponderance in the evidence against them; and, when the evidence as it appears in the record, fully considered, furnishes reasonable grounds for different conclusions, the findings will not be disturbed." Gibson v. Morris State Bank, 49 Mont. 60, 140 P. 76.
Primarily, the question at issue was one for solution by the jury and the trial court.
Jones v. Shannon, 55 Mont. 225, 175 P. 882.
The action is of equitable cognizance. Barnard Realty Co. v City of Butte, 48 Mont. 102, 136 P. 1064; Id., 55 Mont. 384, 177 P. 402. Unless, therefore, the evidence does proponderate against the findings of the jury,...
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