JENKINS v. TYNON.

27 P. 893

1 Colo.App. 133

JENKINS
v.
TYNON.

Court of Appeals of Colorado

October 12, 1891

Appeal
from district court, Arapahoe county; W.S. DECKER, Judge.

Action
of forcible entry and detainer by James Tynon against Henry
Jenkins. From a judgment in favor of plaintiff, defendant
appeals. Affirmed.

N.B.
Bachtell, for appellant.

Coe &
Freeman and Geo. L. Sopris, for appellee.

REED,
J.

The
N.E. 1/4 of the N.E. 1/4 of section 33, township 40 S., range
67 W., in the county of Arapahoe, was embraced in a grant
made by the government to the Union Pacific or Kansas Pacific
Railroad Company, but was never conveyed to the company, and
the title remained in the government. The railroad company,
by virtue of its grant, assuming to be the owner, contracted
a sale of it, in connection with the balance of the quarter
section, to one James Cozad, who made partial payments,
improved and occupied it, and sold his interest to Tynon,
(appellee,) and conveyed it by quitclaim deed. Tynon
afterwards obtained a warranty deed to the land from the
company, and [1 Colo.App. 134] by himself, lessees, and
tenants had sole and exclusive possession until the 4th day
of March, 1889, when Jenkins (appellant) entered into the
possession of the house and premises, claiming a right to
occupy the 40-acre tract, and dispossess appellee. A question
having arisen between the government and the corporation in
regard to the right of the latter, the conveyance to the
corporation was suspended, and the title remained, as above
stated, in the government. The government also refused to
regard the land as open to settlement under the laws of
congress, and refused to allow parties to occupy and take the
necessary steps to acquire a title. While the land in
question was in this situation, on the 24th of January, 1887,
one Dryfus made application to the local land-office to be
allowed to claim it under
[27 P. 894.]
the homestead act, which application was refused under
instructions from the land department of the United States.
On September 3, 1887, J.B. Cozad made application under the
timber-culture act, which was likewise rejected. On April 3,
1888, appellant applied to file upon and occupy the land
under the homestead act, and his application was also
rejected. It was upon such proceeding and rejection of his
application that he assumed the right to evict the appellee,
and enter into possession of the land. This suit was brought
originally in the county court; was tried to the court,
resulting in favor of appellee on December 11, 1889. An
appeal was taken to the district court, a trial had to a jury
on March 11, 1890, also resulting in a judgment for appellee,
from which this appeal was taken.

Several
errors are assigned, but none are found sufficiently
important to warrant a reversal. The principal question of
fact was as to the possession of appellee. There was
uncontradicted evidence of long prior actual possession. Mr.
Marvin, a former tenant, testified that he moved out of the
house the last part of February, 1889, probably the 20th or
22d of the month. When he left, the house was locked, the
windows nailed down, gates shut, and barn-doors fastened. Mr.
Pritchard testified that he leased the property on the 4th of
[1 Colo.App. 135] March, 1889; paid his rent; moved out on
the 6th for the purpose of taking possession and occupying
the property; found appellant in possession; on the 7th he
surrendered his lease. Mr. Robinson was the next tenant,
leasing on March 7th; went out and found appellant in
possession of the house, in which he remained some days,
until he built another house on the same land, which was
about the 13th or 14th of March, when he (Robinson) moved
into the house, and retained the possession: was living there
at the time the case was tried. Appellant also occupied the
small house built by himself. The jury was warranted in
finding the possession in appellee. That he was in under
color of title has been already shown. In this action
(forcible entry and detainer) title could not be tried, but
the muniments of title put in evidence by appellee have
always been held admissible to show the character of the
possession. It was not error to admit the title-papers for
that purpose. A right to disturb and dispossess a party
legally in possession could not be predicated upon a refusal
of the departmental officers to allow him the occupation and
possession. His claim to the right is not based upon a
consent, but upon a refusal of the government to grant a
consent. Having shown no right whatever to the possession of
it, the taking of it was a wanton and unwarranted invasion of
the rights of another, as shown by the evidence. Admitting,
as claimed by appellant, that the land was a part of the
public domain, yet, it being in the actual possession of
appellee, such possession was entitled to legal protection.

Appellant
insisted that, as there was no one in actual, immediate
possession at the time of the entry, the possession had been
abandoned. This was not sustained, but contradicted, by the
evidence. Abandonment is always a question of intention,--the
fact, when relied upon, must be proved like any other
material fact. The case of McCartney v. McMullen, 38 Ill.
237, and others, relied upon by counsel for appellant, fail
to sustain his [1 Colo.App. 136] contention in regard to the
character of the possession necessary to maintain this
action. In McCartney v. McMullen the possession was not
actual, only constructive,--such as a party has simply by
virtue of ownership. There were no buildings upon the land,
nor improvements of any kind, and the only acts of possession
proved were occasional entries for cutting and removing
firewood, etc. The forcible entry and detainer act of
Kentucky is the same as that of Illinois, and ours that of
the latter state, and in the discussion contained in the
opinion in McCartney v. McMullen the learned judge cites and
approves Brumfield v. Reynolds, 4 Bibb, 388; Stewart v.
Wilson, 1 A.K. Marsh. 255; and Chiles v. Stephens, 3 A.K.
Marsh. 347,--as cases where the action could be maintained,
although neither the owner nor tenant were in the actual,
personal occupancy at the time of the entry. The parallelism
of those cases with the one under consideration will at once
be apparent upon examination; notably, that of Chiles v.
Stephens. The proof of payment of taxes was unnecessary, and
should not have been allowed. It did not tend to prove
possession, nor define the right by which possession was
held; but, as all the facts were before the jury, it could
not have been misled by the proof under the instructions of
the court.

The
contention that the court erred in refusing the instructions
prayed by appellant cannot be sustained. The first and third
were proper, but they, in substance and effect, were given in
the instructions of the court. The second and fourth were
very properly refused. Error is also assigned upon the
instruction given by the court. On a careful examination of
it as a whole, we do not think it erroneous, but a fair,
clear statement of the law of the case. The judgment of the
district court should be affirmed.