Cohen v. McKenna Lumber Co.

Mackintosh, J. The appellants, being the owners of twenty acres described as north half of the northwest quarter of the southwest quarter of section 5, township 17 north, range 3 east, W. M., began an action of forcible entry and detainer against the respondents, claiming that the respondents had forcibly entered and were detaining the above described property. Upon the trial, evidence was introduced showing that the property actually being used by the respondents was not located in the quarter section owned by the appellants, but was property which was included within the appellants’ fences. The admission of this evidence is complained of by the appellants for the reason, as they claim, that thereby the title of property was being tried in an action of forcible entry and detainer. [246] It is the established law that, in such an action, the title is not to be litigated. But, as we view the case, a dispute over a boundary line was not being determined, nor was it being determined as to who was entitled to the premises being occupied by the respondents by reason of a better title thereto. The testimony was admissible to show that the respondents were not occupying the property described in the statutory notices and alleged in the complaint as being the property of the appellants. When the testimony developed that the property, although lying within the appellants’ fence, was not the property described in their notice to vacate, nor in their complaint, the appellants’ case failed, and the court was correct in entering judgment of dismissal.- Judgment affirmed. Main, C. J., Chadwick, and Mitchell, JJ., concur.