McCormick v. Sheridan

Belcher, C. C. This is an action of forcible detainer to recover possession of 160 acres of land. It is alleged in the complaint that on the fifth day of December, 1884, and for five days prior thereto, the plaintiff was in the peaceable and actual possession and occupation of the northwest quarter of section 17 in a certain described township; that on the said fifth day of December, and in the night-time, the defendant unlawfully entered upon said land and took possession of the same; and that on the twenty-second day of the same month plaintiff made a demand that defendant surrender to him the possession of the land, but defendant neglected and refused, for the period of five days after such demand, to surrender possession of the same, and still holds and continues in possession thereof.

The answer denies that on the fifth day of December, 1884, or on all or any of the five preceding days, plaintiff was in the peaceable or actual possession or occupation of the land in controversy; denies that defendant unlawfully entered upon or took possession of the land; and alleges that it was public land subject to pre-emption, and that defendant was a qualified pre-emptor, and entered upon the land with the intention and for the purpose of pre-empting the same under the laws of the United States.

The case was tried before a jury, and a verdict returned for defendant, on which judgment was entered. The plaintiff then moved for a new trial, and, his motion having been denied, appealed from the judgment and order.

Ho errors of law are assigned, but it is argued that the verdict was not justified by the evidence.

The record is somewhat voluminous, but the material [255]facts may be briefly stated as follows: The plaintiff claimed to have held the quarter-section in question for several years under a lease, but when asked by defendant to produce the lease declined to do so. The land had never been inclosed. There was a small house on it, in which was some furniture, and a barn in which was some hay. There were also on the place some farming utensils. Plaintiff had cultivated some of the land, and in the year 1884 had raised some hay and some wheat and barley upon it. The hay was stored in the barn, and the wheat and barley, as soon as thrashed, were hauled away. In the spring of 1884 plaintiff summer-fallowed a part of the land, and he estimated the number of acres summer-fallowed at from thirty to forty, while the defendant, and another witness called for him, estimated the number at only four.