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estoppel. It is conceded that bis wife rented a nonresident may, by purchase from an octhe property, took possession under her con- cupant, acquire such a right to the occutract of rental, and paid the rent, and that pancy as will entitle him to a judgment for he resided with her. The payment of rent a conveyance. Stringfellow v. Cain, 99 U. S. establishes the relation of landlord and ten- 615; Bussey v. Smith, 99 U. S. 20. ant. Bigelow, Estop. 520. If a wife leases or Counsel for plaintiff in error cites a number rents real estate, and the husband does not of authorities supporting the principle that at the time, in some manner, express bis dis- the act of congress creates the trust in favor sent or repudiate the transaction, the lease of those who at the time the entry was made inures to his benefit, and be becomes a ten- were occupants, or entitled to the occupancy. ant of the lessor. Lucas v. Brooks, 18 Wall. This is evidently the correct rule of law, but 436. Hagar made no effort to repudiate his it cannot avail the plaintiff in error here, wife's contract of rental at the time, but for the reason, as we have stated, that his went into possession with her under the con- occupancy inured to the benefit of his landtract of rental, and appropriated the benefits lord, and was the occupancy of Wikoff. Counof her contract. He never sought to avoid sel for plaintiff seem to have proceeded upon the wife's contract until after they had been the theory that, Stafford never having rein possession for some time, paying rent, sided upon the town site, he could acquire no and he conceived the idea of acquiring title interest therein. This is not the law. The to the lot by reason of his occupancy. Hav- lands settled for town-site purposes are to ing gone into possession of the lot under the be entered for the use and benefit of the occontract to pay rent, and having actually ac- cupants thereon. Occupancy may consist of knowledged an interest in the property in either residence, personal occupancy, or imfavor of another by the payment of rent, he provement. One who erects, or causes at cannot be heard to say that he occupied the his expense to be erected, upon a town lot, lot himself, unless he had openly and in good a building for the purpose of trade and busifaith surrendered possession to the person ness or residence is an "occupant,” as confrom which he obtained possession. His oc- templated by the act of congress approved cupancy was the occupancy of the person May 14, 1890, although he has never resided from whom he procured possession. What in the town. This act was passed for the improvements he made thereon, in the ab. benefit of the occupants of town sites settled sence of any agreement, became the improve- in Oklahoma, in order that they might proments of his landlord, and all the time he cure title to the lots upon which they had was occupying the lot his landlord was in made settlement, and not forfeit their setactual occupancy through him, and the pol- tlement or their improvements. The supreme icy of the law, good conscience, and morals court of the United States in Rector v. Gibwill not permit him to say that it was his bon, 111 U. S. 276, 4 Sup. Ct. 605, in speaking occupancy. If he desired to assert a claim of this same question, said: “Parties sucto the lot before the town-site board, he should ceeding by operation of law or by conveyance have in good faith vacated the lot, notified to the possession of such claimants or occu-, his landlord or the person who gave him per- pants would succeed also to their rights. But mission to occupy, and made his entry upon lessees under a claimant or occupant, holdthe lot as an adverse claimant.

ing the property for him, and bound by their There is no principle of law or in equity | stipulation to surrender it on the terminathat will now permit him to assert a title to tion of their lease, stand in no better position the lot in question. It is contended by plain- to claim an adverse and paramount right of tiff that the pleadings do not disclose the purchase. Their possession is in law his posqualifications of Wikoff or his grantors to session. The contract of lease implies, not take and hold public land in Oklahoma. only a recognition of his title, but a promise This question was settled by the town-site to surrender the possession to him on the terboard when they awarded the title to Wikoff. mination of the lease. They, therefore, while Before the board could award him a deed, it retaining possession, are estopped to deny was necessary that they should find that he his rights. Blight's Lessee v. Rochester, 7 was qualified to acquire title, and this finding Wheat. 534. This rule extends to every peris conclusive until set aside for fraud, im- son who enters under lessees with knowl. position, or mistake, and cannot be ques- edge of the terms of the lease, whether by tioned in this manner. The first settler, Ber- operation of law or by purchase and assignkey, acquired an interest in the lot by his ment. The lessees in this case, and those settlement and occupancy. The erection of deriving their interest under them, could, a building on the lot constituted him an oc- therefore, claim nothing against the plaintiff cupant, and gave him such an interest as he by virtue either of their possession, for it is might sell, assign, or transfer, and so of the in law bis possession, or of their improvetransfer from Stafford to Wikoff. The su- ments, for they were in law his improvepreme court of the United States has recog- ments, and entitled him to all the benefits nized this right, and affirmed the principle they conferred, whether by pre-emption or • that an occupant of a town lot under the otherwise. Whatever the lessees and those town-site laws of the United States may under them did, by way of improvement on transfer or convey his interest or right, and the leased premises, inured to his benefit as absolutely and effectually as though done, sions of the Oklahoma statutes which were by himself.” It takes more than people to in force at the time this case was tried, and make a town. There must be business and at the time this application for bail was preresidence houses, and there must be business sented to this court; for an act passed by nen and business, and one who invests bis the legislature now in session, and approved capital in the improvement of a town lot, by by the governor on February 2, 1895, leaves constructing a building thereon, is as much no doubt upon the questi that where & an occupant under the town-site laws of the conviction has been had, and the punishment United States as the one who puts up a tent fixed at life imprisonment, the defendant is and personally occupies it. The plaintiff was not entitled to bail pending an appeal to the in no position to seek the aid of a court of supreme court. Section 1 of the act referred equity, having acquired his possession to reads as follows: through his wife, who was a tenant. He was “Section 1. That section 5501 of the Stat. violating a plain principle of law when he utes of Oklahoma be, and the same is here attempted, while so in possession, to defeat by, repealed, and the following be enacted in the title of his landlord or his grantee; and lieu thereof: Sec. 5501. After conviction of those who seek a right by violating the law a crime or public offense, not punishable by cannot secure the aid of equity, and hence death or incarceration for life in the terrihe was not entitled to an injunction. The torial prison, a defendant who sues out a judgment of the court was right, and the writ of error for revision of the judgment, or pleadings would sustain the same without takes an appeal from the judgment rendered any proof. The defendant has assigned cross against him, shall, on furnishing bond, be aderrors based on the refusal of the court to mitted to bail as provided by section 5324 of permit him to prove the amount of his dam- the Statutes of Oklahoma. The court when ages. The defendant made no motion for a passing sentence shall fix a reasonable time new trial. If it was error, it should have within which bail may be given, and the apbeen presented to the trial court by motion peal or writ of error taken, and shall durfor a new trial. The question is not before ing that time hold the defendant in custody. this court, and will not be considered. The If bail be not given in the time fixed, the judgment is in all things affirmed.

judgment of the court shall be carried into

execution. All defendants heretofore conDALE, C. J., did not sit in this case, having victed, and who have appealed or have writs presided below.

of error now pending for the review of the judgment against them, or who may here

after so appeal under this act, shall be en. (2 Okl. 606)

titled to the benefit of this act; and if bail In re SHOEMAKER.

be not now fixed, the court shall fix the bail

as in section 5324 provided, and on giving (Supreme Court of Oklahoma. Feb. 16, 1895.)

bail, the defendant shall be released pending BAIL PENDING APPEAL --CONVICTION OF MURDER -REPEAL OF STATUTE.

his app If the bail fixed be excessive, 1. Under an act of the legislature of this the defendant shall, by habeas corpus proterritory upproved February 2, 189.7, a defend- ceedings, have the right to have the same ant who has been convicted of murder and sen

fixed by the supreme court, or if court be not tenced to life imprisonment is not entitled to bail pending appeal.

in session, then by some judge or justice of 2. Where a remedy depends purely upon a the supreme court other than the judge who statute giving the same, the repeal of the law

fixed the bail." pending an action puts an end to the right, even as to a pending proceeding.

There is no saving clause in this act of any (Syllabns by the Court.)

rights which may have existed in a murder

case, and whatever they were we do not Application by Henry M. Shoemaker for

now determine, under sections 5501 or 5324, writ of habeas corpus.

which are the principal ones out of which Gardner & Risley, for petitioner. C. A. the dispute between the territory and the Galbraith, Atty. Gen., for the Territory.

defendant on this matter arose. The right

of bail after conviction is purely statutory, BIERER, J. This is a habeas corpus pro- and would not exist in the absence of the ceeding instituted in this court for the pur- statute; and, if the right ever did exist in pose of procuring bail and a stay of execu- the petitioner to have bail after conviction, tlon pending an appeal from a judgment it certainly does not exist now, for the reagainst the petitioner, Henry M. Shoemaker, peal of the statute would certainly take it which judgment is that he is guilty of mur. away, even as to a pending case. Gilleland der, and for which he was sentenced to im- v. Schuyler, 9 Kan, 569. In the case cited prisonment in the penitentiary for life. The the supreme court of Kansas, by Justice petitioner claims that under our statutes, the Brewer, said: “It will not be denied that jury having fixed his punishment at impris- the ordinary effect of the repeal of a statute onment for life instead of death, he is en- is to put an end to all proceedings under it titled to bail pending his appeal to the su- then pending and undetermined.” The appreme court. It is unnecessary now to place plication of the petitioner is denied. All the & construction upon the conflicting provi- | justices concurring.

(15 Mont. 309)

ly described as follows, to wit: 'Situate in HAGGIN v. LORENZ et al.

Deer Lodge county, state of Montana, begin(Supreme Court of Montana. Feb. 11, 1895.) ning at a point from which a certain noEJECTMEXT-DESCRIPTION-AMENDMENT AFTER

tification stake set up on said premises bears DeFat'LT JUDGMENT.

south, 62 degrees west, distant four hun1. In ejectment, where the general descrip- dred (400) feet (said notification stake is lotion in the complaint is different from that by cated N., 30 degrees 55 minutes W., from courses and distances, the latter controls. 2. Where the complaint in ejectment does

the quarter section corner, between sections not describe any land in possession of defend- twenty-five (25) and twenty-six (26) in the ant; after judgment thereon by default the com- township and range aforesaid, and is fourplaint and judgment cannot be so amended as

teen hundred and twenty-four (1,424) feet to describe land in his possession.

distant therefrom); thence N., 28 degrees Appeal from district court, Deer Lodge E., 700 feet; thence S., sixty-two degrees E., county; Frank H. Woody, Judge.

800 feet; thence S., 28 degrees W., 1,700 feet; Action by James B. Haggin against Wil- thence N., 62 degrees W., 800 feet; thence liam Lorenz and others to recover posses- N., 28 degrees E., 1,000 feet, to the place of sion of land. There was a judgment by de- beginning,'-and ousted this plaintiff therefault for plaintiff, affirmed upon appeal (13 from.” It is observed that the complaint Mont. 406, 34 Pac. 607), and writ of restitu- first states that the land demanded is a portion thereupon issued. From an order deny- tion of the southwest quarter of said secing a motion to amend his complaint, the tion 25, but the description which follows by judgment, and writ by properly describing metes and bounds or courses and distances, the premises, and from one granting a mo- instead of locating the demanded piece of tion of defendant that he be put back into ground in section 25, in fact locates it in possession of the premises from which he section 26. This happens by reason of the had been ejected under the writ, plaintiff bearing of the notification stake being given appeals. Sermed.

as from the quarter section corner between This is another appeal in the same case sections 25 and 26, whereas, if it had been as that reported under the above title in 13

given as the quarter section corner between Mont. 406, 34 Pac. 607. On the former ap- sections 25 and 36, the alleged demanded peal we refused to reverse the order of the premises would have been in section 25. The district court denying a motion to set aside complaint, judgment, and writ of restitution the default of the defendant, and the conse- were all alike as to the description. The fact quent judgment in favor of plaintiff. For a developed on the motion that the defendant statement of the case up to the time of the was not in possession of any portion of secremittitur on that appeal, see the above re- tion 26, but was in possession of a portion of port. Upon that remittitur being filed in the section 25, and that the sheriff had disposdistrict court, a writ of restitution was is- sessed him from section 25. Then the motions sued, and defendant was thereby dispossess- by both plaintiff and defendant were made, ed of certain premises. It was then discov

ve described. ered that the complaint and judgment and

W. W. Dixon, Wm. Scallon and Geo. B. writ did not describe the premises which de- Winston, for appellant. Edward Scharnikfendant had been possessed of, and from

ow, for respondents. which the sheriff had, by the writ, ejected him. Plaintiff then moved for leave to amend DE WITT, J. (after stating the facts). The his complaint and judgment and writ, and facts set out in the statement preceding this defendant moved that the said writ of res- opinion all appeared upon the hearing of titution be recalled, and that he be put back the motions by the district court. It may into the possession of the premises from also be conceded that it fully appeared that which he had been ejected under the writ. all parties to the litigation understood that The plaintiff's motion was denied, and the the same was in reference to the ground acdefendant's motion was granted. From these tually occupied by the defendant in said secorders the plaintiff appeals.

tion 25; also that it was first discovered that The complaint sets up at length facts by the complaint and judgment described ground reason of which it is alleged that the North- in section 26 after the writ of restitution had ern Pacific Railroad Company became the been issued. But we are of opinion that owner of section 25, township 5 N., range we cannot decide this appeal upon what the 12 W. The complaint then alleges the sale parties understood was the description of and conveyance of said section 25 by said the premises in the complaint. We think that railroad company to the plaintiff. Then the we should examine that description as it is. following allegation is made in the com- The plaintiff contends that the complaint plaint: (11) “But plaintiff says that now, so fairly shows that the ground described and it is, the above-named defendant, on or about sought to be recovered was in fact in secthe 1st day of September, A. D. 1888, wrong- tion 25. This we cannot concede. The parfully and unlawfully, without the consent of cel is described, in the first place, as a porthis plaintiff, entered into and upon that por- tion of the southwest quarter of section 25, tion of said southwest quarter of section but the description at once goes on to say, numbered twenty-five (25), more particular- "more particularly described as follows, to

as

cur.

SO

wit," and then comes a surveyor's accurate , to the plaintiff premises "easterly" from a and technical description by courses in min- certain point, when in his complaint he had utes and seconds, and by distances in feet. demanded premises "westerly" from said This description places the ground wholly point. We have not the slightest hesitation and clearly out of section 25, and as wholly in affirming that the district court was wholand clearly in section 26. Such particular ly right in deuying the application to amend description as latter must control the the complaint, the judgment, and the writ general description which precedes it. Lum- of restitution, and in recalling the writ of ber Co. v. Davie, 13 Mont. 76, 32 Pac. 282; restitution. It did not appear anywhere in Largey v. Sedman, 3 Mont. 357. Then we the case that the plaintiff requested to make have this situation: The complaint and judg- his amendments upon allowing the defendant ment and writ describe one piece of land, and to come in and answer thereto. The orders the plaintiff, after the default of the defend- of the district court are affirmed. Affirmed. ant, wishes to amend these records by inserting a description of another piece of land. PEMBERTON, C. J., and HUNT, J., conThis is certainly a material amendment. We think that we need not stop to fortify this statement by argument or by authorities. The plaintiff wishes to make this material

(15 Mont. 274) amendment, and still hold his default against

SWEENEY V. CITY OF BUTTE. the defendant. When the defendant got into default, plaintiff was asking possession of a

(Supreme Court of Montana, Feb. 11, 1895.) piece of ground in section 26. Now, by seek- ACTION AGAINST City--TRAPDOOR IN SIDEWALK

CONTRIBUTORY NEGLIGENCE-PERSONAL INing to amend, plaintiff wants a piece of

JURIES-EXCESSIVE DAMAGES. ground in section 25, and this without an

1. In a suit against a city for injuries reopportunity for defendant to answer. De

ceived from walking into an opening in a sidefendant had no occasion to defend against walk, it appeared that there were double trapplaintiff's demands for the land in section doors in the walk, occupying about seven26, for defendant did not occupy or claim

tenths of its width, and a cellar beneath; that

the doors were constructed that, when any land in section 26. But when plaintiff opened, they lay back flat upon the walk, unless wishes to change his pleading and judgment | other appliances were used to hold them upto cover land in section 25, then the defend

right; that the city knew that fact, it hay. ant is materially affected as to a right upon

ing control over the walk, but did not know that

the doors were open at the time of the acciwhich he has never had an opportunity to dent; and that plaintiff could not see the hole, be heard, and as to which he has never de- on account of the darkness. Held, that the case faulted. We base this line of reasoning, of

was one for the jury.

2. Where a city knows that trapdoors which course, upon our decision at the commence

it permits to exist in a sidewalk are dangerous ment of this opinion that the particular de- whenever used in the manner in which they scription controls the general in the com

were built to be used, and ordinarily are used,

and an injury occurs through such dangerous plaint. Such a material change as this can

use, it need not be shown that the city knew not be made after default. This court said that the doors were being used at the time of in Schuttler v. King, 30 Pac. 25 (a portion

the accident, in order to render it liable for the of the decision in which the whole court

injuries.

3. In a suit for injuries received in walking agreed), as follows: “It is proper to note into an unguarded opening in a sidewalk, where also that we think it a dangerous precedent there was evidence that plaintiff was near sightto allow any material amendment of the com- ed, it was proper to refuse to charge that if the

defect of sight, coupled with the exposure to plaint where default is made, and enter

danger, caused the injury, which otherwise judgment without further service according would not have occurred, the jury might find to such amendment. Code Civ. Proc. 88 241, plaintiff guilty of contributory negligence. 245." See, also, Barber v. Briscoe, 8 Mont.

4. Where is appears that plaintiff's left

arm was broken, and would never become a 214, 19 Pac. 589; Foster v. Wilson, 5 Mont.

perfect arm, and that consequently plaintiff's 53, 2 Pac. 310. We are of opinion that to working capacity was permanently reduced by allow such an amendment as was proposed

three-fourths, a verdict for $4,500 will not be

set aside as excessive. to be made in this case would be wholly wrong. It would open the way to allowing Appeal from district court, Silver Bow a plaintiff to bring a defendant into court county; J. J. McHatton, Judge. to answer one cause of action, and, if he got Action by John Sweeney against the city of the defendant into a default, then to prove a Butte. From a judgment for plaintiff, and wholly different cause of action against him. an order denying a new trial, defendant ap. It is true, perhaps, that the matter of de- peals. Affirmed. scription in this case was a clerical error, The judgment in this case was in favor of but it was a substantial and material one. the plaintiff for $4,500 damages for injuries It went to the very anchorage of the whole sustained by reason of the plaintiff falling indescription. It was quite as apparent in to a cellar under the sidewalk on one of the Foster v. Wilson. 5 Mont. 53, 2 Pac. 310, that streets of the defendant. The defendant apthe error was a clerical one, yet in that case peals from the judgment, and from an order the court would not allow a judgment by denying a new trial. The complaint alleges default in ejectment to stand, which gave the municipal character of the defendant, and its duty to keep its streets and sidewalks there are only about 2 feet and 3 inches bein good and safe condition. It further al- tween the doors and the abutting building. leges that the defendant disregarded this, its The doors were made to open and lie back duty, and negligently allowed an opening to flat upon the sidewalk. That was the plan be made in a sidewalk, and trapdoors to be of their construction. There were no rods or placed over said opening, on a principal hooks or other appliances to hold the doors street of the city; that said trapdoors opened upright when open. A 2 by 4 piece of timber into an excavation about eight feet deep, and was kept under the doors. This was laid on of the width of the sidewalk; that said doors top of them when they were opened. It did formed part of the sidewalk, and extended not tend to keep them upright. In the plan across, or nearly across, the entire width of and construction of the doors and the trap, the walk, so that when the doors were open the method of operating was to lay the doors there was not sufficient room to pass with flat on the sidewalk when opened. If it were safety upon the sidewalk; that said trapdoors desired to keep them upright when opened, were unlawfully, wrongfully, and negligently appliances other than those belonging to the constructed, maintained, and used; that at doors had to be obtained. As to this there is all times mentioned in the complaint they not even any dispute. On the night of the were dangerous to pedestrians; th said accident the doors were open, and lying flat trapdoors were negligently used and left on the walk; that is to say, there was eviopen, with the knowledge of the defendant, dence of that fact, which the jury apparfor a long period, to wit, two years; and that ently believed, and, from our reading of the during that time they were left open, at the evidence, we observe that such finding was pleasure of those owning or occupying the amply sustained. The city authorities knew premises, either by day or night, without any the nature of the construction of this trap and guards or lights or barriers or signals of dan- these doors, and knew that they were made ger to notify persons traveling upon the side- to lie open flat on the sidewalk, unless appliwalks. The complaint further alleges that ances other than those connected with the on the 20th day of December, 1890, about 6 doors were brought to their aid. The city o'clock p. m., plaintiff was lawfully passing authorities did not know that the doors were upon said sidewalk, and said trapdoors were opened at all at the particular time of the open, without guards, barriers, or lights, and accident. The ordinances of the city of plaintiff, without negligence on his part, step- Butte were proved, showing that the city had ped into the said opening in the sidewalk, assumed jurisdiction over the streets, and fell to the bottom of the cellar, and sustained had created the office of street commissioner, injuries, which he describes, to his damage and defined his duties. Sullivan v. City of in the sum of $15,000. The answer denies Helena, 10 Mont. 134, 25 Pac. 94. At 6 p. all of the material allegations of the com- m., after dark, December 20, 1890, plaintiff plaint.

came up this Main street from the south. John W. Cotter and H. G. McIntire, for ap

There was much conflict in the evidence as

to the amount of illumination supplied by the pellant. Wm. Scallon, for respondent.

lights in the neighborhood. Plaintiff came

up the sidewalk along the outer edge of the DE WITT, J. (after stating the facts). We same. At the southwest corner of the trap, will state what the evidence was which his progress was arrested by a box and a tended to prove negligence, and which the re- barrel standing at that corner, and which spondent contends was sufficient for that pur- therefore blockaded his path along the 18 pose. There was some conflict in the evi- inches of sidewalk which was outside of the dence, but not a great deal. It showed the trap. In order to pass the box and the barfollowing facts; that is to say, there was am- rel, he turned to the right, and in stepping ple evidence of the following facts, which forward he suddenly became aware of a dark evidence the jury apparently believed. The spot in the sidewalk; and, before he could district court, on motion for a new trial, re- withdraw his foot from the step which he fused to disturb the verdict, and we find no had taken upon the dark spot, he was prereason to enter upon the question of fact thus cipitated into the cellar, the dark spot turnsettled.

ing out to be the open trap. He thus reMain street, in the city of Butte, is a great ceived the injuries of which he complains. thoroughfare, running north and south This is a statement of the evidence, as it apthrough the city. At No. 106 on that street pears in the record, favorable to plaintiff. is a cellar under the sidewalk, about 10 feet There was some conflict in this evidence credeep. In the sidewalk are double trapdoors, ated by the defendant, but it is not now for extending east and west for 6 feet and 8 us to inquire into such conflict. See Moninches. The width of the doors is each 22 tana cases on this point collected Mattock inches, and the combined width 3 feet and 8 v. Goughnour, 11 Mont. 274, 28 Pac. 301, and inches. The sidewalk is about 10 feet and 3 also Brundy v. Mayfield, 14 Mont. 38 inches wide. On the west side of the trap-Pac. 1067; Lambrecht v. Patten, 14 Mont. doors there are only 18 inches between the 38 Pac. 1063; Bradshaw v. Degenhart, 14 doors and the edge of the sidewalk towards Mont. - 39 Pac. 90. the street. On the east side of the doors The defendant moved for a nonsuit, which

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