Tebay Land & Live Stock Co. v. Hastie

• Decision Date: 04 November 1922
• Docket Number: 4901.
• Citation: 210 P. 605,64 Mont. 509
• Parties: TEBAY LAND & LIVE STOCK CO. v. HASTIE.
• Court: Montana Supreme Court

210 P. 605

64 Mont. 509

TEBAY LAND & LIVE STOCK CO. v. HASTIE.

No. 4901.

Supreme Court of Montana

November 4, 1922

Appeal from District Court, Jefferson County; Jos. C. Smith, Judge.

Action by the Tebay Land & Live Stock Company against Mary Jane Hastie. There was a directed verdict for plaintiff, and from an order denying a motion for new trial, defendant appeals. Affirmed.

Leslie B. Sulgrove, of Butte, for appellant.

J. E Kelly, of Boulder, for respondent.

FARR J.

The complaint states a cause of action in ejectment for the recovery of the possession of a tract of land in Jefferson county, Mont., described by metes and bounds, being that portion of the southeast quarter of the southwest quarter of section 10, township 1 north, range 4 east of the Montana meridian, lying west of the Jefferson river.

Upon issue joined, the case was tried before the court with a jury, and at the conclusion of the evidence the court directed a verdict for the plaintiff, upon which judgment was entered for the plaintiff and against the defendant. Defendant moved for a new trial, which motion was denied, and this appeal is from the order denying the motion.

The real question in controversy was as to the location of the dividing line between the southeast quarter of the southwest quarter of section 10 of this township and range claimed by the plaintiff, and the southwest quarter of the southwest quarter of that section claimed by the defendant, this depending on the location of certain section corner and quarter corner markings on the south side of section 10 as established by the United States government survey. The location and ownership of a slaughterhouse, a hoghouse, and certain pens and inclosures used in connection with these buildings was the cause of the controversy, the plaintiff contending that these were located on that portion of the southeast quarter of the southwest quarter of section 10 lying east of the river belonging to him, and defendant contending that they were located on her land, the southwest quarter of the southwest quarter of said section.

The specifications of error relied on present but two questions (1) Whether the evidence was sufficient to establish the plaintiff's title to the land which it alleged to own and (2) whether the court properly directed a verdict for the plaintiff.

1. Defendant questions the sufficiency of the evidence to establish plaintiff's title to the land which it alleged ownership of, because the only evidence of proof of ownership was the oral testimony of Fred Tebay, vice president and treasurer of the Tebay Land & Live Stock Company, the plaintiff corporation. Tebay testified, without objection, that--

"At the time of the beginning of this suit the Tebay Land & Live Stock Company was the owner of and entitled to the possession of the land in question. The Tebay Land & Live Stock Company has been the owner at all times since the filing of this complaint and entitled to the possession thereof. Since on or about March 17, 1917, the Tebay Land & Live Stock Company has been the owner of and entitled to the possession of that land in question."

There was not any testimony in any manner tending to rebut this. Defendant now contends that this evidence was insufficient to prove ownership in the plaintiff, and relies upon the well-settled rule that the burden of proof in a case of this kind is on the plaintiff to prove ownership, and that the plaintiff must recover on the strength of its own title, and not on the weakness of that of its adversary. This rule is elementary, but the rule does not require proof that is either unnecessary or absurd. The proof required on the part of the plaintiff in a case of this kind is frequently modified by the nature of the defendant's right or claim and plaintiff is often not required to prove a perfect title. It is frequently sufficient if he has made such proof as will entitle him to recover if no further testimony be offered. Elliott on Evidence, §§ 2040, 2041, and cases there cited. Tebay testified in plaintiff's behalf, without objection, to the ultimate fact to be proven, that the ownership of the land was in the plaintiff corporation. After so testifying in chief the witness was cross-examined, and on cross-examination he testified to the manner in which the plaintiff acquired title to the property. The case was tried upon the theory that the only question in dispute was the location of the boundary line between the southeast quarter of the southwest quarter and the southwest quarter of the southwest quarter. Defendant made no claim of title in herself to the southeast quarter of the southwest quarter, nor did she claim that any person other than the plaintiff was the owner. She did claim that the slaughterhouse and pens were owned by her, but this claim of ownership was based upon her belief that they were situated upon the southwest quarter of the southwest quarter of that section instead of the southeast quarter of the southwest quarter. In view of all this we think that Tebay's evidence was at least prima facie proof of ownership. Westfield Cigar Co. v. Insurance Co., 169 Mass. 382, 47 N.E. 1026; Sparks v. Galena Nat. Bank, 68 Kan. 148, 74 P. 619; Minnesota Debenture Co. v. Johnson, 96 Minn. 91, 104 N.W. 1149, 107 N.W. 740. If timely objection had been made to this testimony given by Fred Tebay, it should have been excluded, for it is true that ownership of real property is ordinarily to be proven by the title deeds and the public records, and not by the bare assertion of the fact itself. And the fact that on cross-examination the witness Tebay, in referring to the ownership of the land, used the pronoun "I," does not detract from the value of his testimony. As, for instance, the witness said on cross-examination: "I know I am the owner of...