Garrison v. Sampson

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

This was ejectment for one hundred and sixty acres of land. The complaint is in the usual form, and the answer a general denial. The case was tried by the Court without a jury, and a judgment rendered for the plaintiff. The case made by the plaintiff on the proofs, tended to show a holding over of the premises by the defendant, and proof to this effect was objected to by the defendant, on the ground that such proof was inadmissible under the general allegations of the complaint, and could only be admitted under specific averments of the facts. But we do not think this point well taken. It is better to simplify the pleadings by allowing these general averments in actions of ejectment, than to introduce the unnecessary confusion which long and complex statements of the facts must necessarily produce. A holding over by the defendant is, in effect, an ouster, and may be so charged. If, in every case, all the facts connected with the title, and the wrongful acts of defendant, be inserted in the complaint, the pleadings would be swollen" to immoderate dimensions, and the expense and trouble of litigation be greatly increased, without any corresponding benefit to the parties. A different practice has prevailed in this State, and the profession and the Courts understand the rule as the pleader in this case did; and we are not disposed to introduce a new rule on this subject.

2. A fatal objection to the judgment consists in the finding of the Judge in favor of the plaintiff for the whole tract of land sued for. The plaintiff claims by force of prior possession and a contract or consent on the part of the defendant, whom he mediately or immediately let into possession, to. hold the premises for him or subject to his order. The land is public land. It was not taken up by the plaintiff under the Possessory Act of this State, nor was it inclosed. There were a house and corral on the land. Of these he may be said to have been in the actual occupancy. But we cannot see from the proofs any right of possession to the whole of the quarter section, or even any claim to it. We do not understand that the mere fact that a man enters upon a portion of the public land, and builds or occupies a house or corral on a small part of it, gives him any claim to the whole subdivision, even as against one entering upon it without title. The case would be differ *96 ent if he claimed under the Possessory Act, and pursued the necessary steps prescribed by it; or if he had made his entry under the preemption laws of the United States. But merely going on waste and uninclosed land, and building a house and corral, and even subsequently cutting hay on a part, did not extend his possession to the whole of the one hundred and sixty acres. Nor do we see any proof in the record of any contract or assent by defendant to hold this whole tract for the plaintiff; the loose admissions relied on* that he said he would hold the place for the plaintiff, not defining any particular tract, certainly not- identifying the whole one hundred and sixty acres now claimed as that tract, are not sufficient to show a tenancy by the defendant for the whole tract sued for.

Judgment reversed, and cause remanded.