White v. Whitcomb

• Decision Date: 15 June 1907
• Citation: 90 P. 1080,13 Idaho 490
• Parties: JOHN E. WHITE et al., Respondents, v. MOSES B. WHITCOMB et al., Appellants
• Court: Idaho Supreme Court

90 P. 1080

13 Idaho 490

JOHN E. WHITE et al., Respondents, v. MOSES B. WHITCOMB et al., Appellants

Supreme Court of Idaho

June 15, 1907

EXTENSION OF TIME TO PREPARE STATEMENT-NOTICE OF APPLICATION FOR-APPEAL FROM JUDGMENT-INSUFFICIENCY OF EVIDENCE TO SUPPORT-WHEN INSUFFICIENCY OF EVIDENCE MAY BE CONSIDERED ON APPEAL FROM JUDGMENT-AND WHEN MAY BE CONSIDERED ON APPEAL FROM ORDER DENYING NEW TRIAL-IMPROPERLY UNITING CAUSES OF ACTION-MISJOINDER OF PARTIES DEFENDANT-DEMURRER TO COMPLAINT-TOWNSITE ON PUBLIC DOMAIN-HOMESTEAD CLAIMANTS-DECISION OF SECRETARY OF INTERIOR-FINDINGS OF FACT BY-ACTION IN EJECTMENT.

1. Under the provisions of section 4892, Revised Statutes, the respondent is not entitled to notice of application by appellant for an extension of time in which to prepare and file statement of the case.

2. Under the provisions of section 4807, the insufficiency of the evidence to support the decision cannot be considered on an appeal from the judgment unless the appeal is taken within sixty days after the rendition of the judgment.

3. Under the provisions of said section, an appeal may be taken from an order denying a motion for a new trial within sixty days after the order is made and entered in the minutes of the court or filed with the clerk, and where the question of the insufficiency of the evidence to support the verdict or decision is properly raised, it may be determined on an appeal from such order, although the appeal from the judgment is not taken within sixty days after its rendition.

4. Under the provisions of section 4169, Revised Statutes, a plaintiff may unite several causes of action in the complaint to recover specific real property, with or without damages for withholding the same or for waste committed thereon and the rents and profits thereof, where the same judgment is asked against all of the defendants.

5. Under the provisions of said section, where a number of parties have at divers times, and without concert of action or collusion, gone upon a certain tract of land and each taken severally a part thereof and erected improvements thereon, and one or more of the parties have individually and on their own account removed certain improvements placed thereon by himself, a cause of action for such removal against such defendant cannot be joined with an action against all of the defendants for a restitution of the entire premises.

6. The demurrer to the complaint should have been sustained, on the ground that several causes of action were improperly united and the plaintiff given permission to amend his complaint and to set forth the causes of action upon which he relied.

7. Where the secretary of the interior under a contest proceeding between W. and the probate judge on behalf of townsite claimants has found as a fact that W. 's claim to the land in controversy was prior to that of the townsite claimants, this court would not be justified in holding that W. held the title thereto procured from the government as trustee for the townsite claimants.

8. Under the provisions of section 2387, Revised Statutes of the United States, land settled upon, occupied and used for townsite purposes and for trade and business is not subject to entry under the homestead laws of the United States.

9. Where one party has acquired the legal title to property to which another has the better right, a court of equity will convert him into a trustee of the true owner, and compel him to convey the legal title to the equitable owner.

10. In this matter, the secretary of the interior has found as a fact that W.'s claim to said land was prior to that of the townsite claimants and for that reason this court would not be justified in holding that W. held said legal title as trustee for the townsite claimants.

(Syllabus by the court.)

APPEAL from the District Court of First Judicial District for Kootenai County. Hon. Ralph T. Morgan, Judge.

Action in ejectment and for damages. Judgment for plaintiff. Modified.

Judgment affirmed in part and reversed in part. Cause remanded, with instructions. Costs of this appeal awarded in favor of appellants.

Albert Allen and John P. Gray, for Appellants.

If the land in controversy was selected as a site for a city or town, or occupied for townsite purposes, or occupied for business and trade, the homestead and pre-emption laws did not apply to the same, and did not authorize the officers of the land department to permit an entry thereon, or to issue a patent therefor. (19 Stats. at Large, 392; 6 F. Stats. Ann 353.)

Where one party has acquired the legal title to property to which another had the better right, a court of equity will convert him into a trustee of the true owner, and compel him to convey the legal title. (Stark v. Starrs, 6 Wall. 402, 419, 18 L.Ed. 925; John v. Towsley, 13 Wall. 72, 85, 20 L.Ed. 485.)

It is clear that the land department totally ignored the fact that White had claimed and possessed the land entirely south of the railroad track, and not including any portion of the land in dispute up to and until the time he made a homestead entry thereon on November 27, 1895.

Notwithstanding the fact that the acting secretary found that the buildings had been moved off the right of way and upon the land in controversy long before White made his homestead entry, and that it was shown on the public map that a townsite existed thereon, the officers of the land department allowed White's entry, and awarded him a patent for the land, including the buildings and improvements of the value of many thousands of dollars, placed thereon by the town occupants. By this erroneous decision of the law the officers of the land department have given to Mr. White a title through the patent, which in equity and good conscience, and under the laws of the United States, should have gone to the probate judge, to be held by him in trust for the benefit of the occupants of the town. (Burfenning v. Chicago etc. Ry., 163 U.S. 321, 41 L.Ed. 175, 16 S.Ct. 1018.)

The map of the public surveys for that township had been exhibited to the officers of the land department on the trial, and that map showed on its fact that the townsite of Clarks Fork existed thereon at the time of the survey in the field. In that respect it is identical with the case of Morton v. Nebraska, 21 Wall. 660, 22 L.Ed. 639.

The laws of Congress prohibiting the acquiring of title by pre-emption and homestead to lands included within the limits of an incorporated city or town, or within the limits of land selected as a site for a city or town, and to lands occupied for the purposes of business and trade and not for agriculture, were framed with a view to protecting the townsite settlers on the public lands from just the kind of a claim that the plaintiffs assert in this case. (Atherton v. Fowler, 96 U.S. 519, 24 L.Ed. 732.)

H. M. Stephens and F. B. Kinyon, for Respondents.

The appellants were entitled to notice of an application for extension of time to file a statement on motion for a new trial and appeal independent of statute. (Peter v. Kalez, 11 Idaho 554, 559, 83 P. 526; Sandstrom v. Smith, 11 Idaho 779, 84 P. 1060; Swartz v. Davis, 9 Idaho 238, 74 P. 800; Stickney v. Hanrahan, 7 Idaho 424, 63 P. 189.)

The court cannot consider the sufficiency of the evidence in this case, so far as consideration thereof has any tendency to support any error assigned by the appellants, for the reason that the appeal herein was not taken within sixty days after the rendition of the judgment and decree appealed from. (Rev. Stats. 1887, sec. 4807; Sess. Laws 1899, p. 273; Moe v. Harger, 10 Idaho 194, 196, 77 P. 645; Cunningham v. Stoner, 10 Idaho 557, 79 P. 228; Mahoney v. Board of Commrs., 8 Idaho 377, 69 P. 108; Brady v. Linehan, 5 Idaho 738, 51 P. 761; Young v. Tiner, 4 Idaho 274, 275, 38 P. 697; Holt v. Spokane etc. Ry. Co., 3 Idaho 703, 35 P. 39.)

One action may be maintained against several parties defendant when they are upon the land wrongfully, or are trespassers, whether they hold jointly or severally. (Andrews v. Carlile, 20 Colo. 372, 38 P. 466; Cunningham's Lessee v. Bradley, 26 Ga. 238; Williamson v. Snowhill, 13 N.J.L. 23, 22 Am. Dec. 496; Marshall v. Wood, 5 Vt. 250; Stuart's Heirs v. Coalter, 4 Rand. 74, 15 Am. Dec. 731; Idaho Rev. Stats. 1887, secs. 4102, 4103, 4169; Brady v. Linehan, 5 Idaho 739, 15 P. 761; Tew v. Henderson, 116 Ala. 545, 23 So. 128; Stevens v. Home Sav. & Loan Assn., 5 Idaho 741, 51 P. 779, 986; Burke Land etc. Co. v. Wells, Fargo & Co., 7 Idaho 42, 60 P. 87; Taylor v. Bartholomew, 6 Idaho 505, 506, 56 P. 325; Frost v. Alturas Water Co., 11 Idaho 294, 81 P. 996; Lewis v. Hinson, 64 S.C. 571, 43 S.E. 15; Pomeroy's Code Remedies, sec. 295; 7 Ency. of Pl. & Pr. 312, and authorities there cited; Curtis v. Sutter, 15 Cal. 260.)

The joining of causes of action for possession and damages in the same complaint is not a misjoinder. (Langsdale v. Woollen, 120 Ind. 16, 21 N.E. 659; 10 Ency. of Law, 2d ed., 538; Rev. Stats. 1887, secs. 4169, 4541.)

If the item as to Gordon Dougharty and wife is not recoverable in this action under the statute, which makes his trespass a part of the cause of action for the possession of real property, then the remedy is by the court disregarding it and modifying the judgment.

As to trespassers, the plaintiff may bring a single cause of action against several defendants relative to a single, separate or distinct tenement or parcel of land, if his title as to all of the defendants is the same. (7 Ency. of Pl. & Pr. 312; Newell on Ejectment, sec. 44; Beard v. Piedery, 3 Wall. 479, 483, 18 L.Ed. 88.) That the defendants in this action are trespassers there can be no doubt. (11 Jaggard on Torts, 660.)

Under the statute (section 4169), the action for possession...