Sell v. Graves

Per Curiam. This action was brought to recover damages for the trespass of defendant in entering land in possession of plaintiff, and cutting the grass thereupon. There was a judgment in favor of plaintiff for $35. Defendant appeals from the judgment and the order denying the motion for a new trial. It appears that the plaintiff, in February, 1891, had sold the land upon which the hay was cut, to the Kalispell Townsite Company. At the time of the sale it was agreed that the plaintiff should remain in possession of the premises until he could cut the grass which should grow upon the land that year. This agreement was not inserted in the deed as a reservation, but it appears by the testimony that this agreement was also made after the deed, and that the townsite company left the plaintiff in possession of the land, and protected him in such possession by all means within its power. The plaintiff was residing upon the land, and had a fence around the whole of the same, except for a short distance on one side, and at that place he kept a hérder to keep stock out. Under these circumstances, the defendant entered and cut the grass. The appellant’s defense was that there was not sufficient possession of plaintiff to maintain trespass, and that he (appellant) [343] had cut the grass upon the streets and alleys of the townsite of Kalispell. It is true that the land had been laid out as a town-site, and the survey properly made and filed. We are of opinion that the facts showed a sufficient possession in the plaintiff to maintain this action against an absolutely naked trespassor, without right or title, or claim or color of same. We have examined the record and the instructions, and are of opinion that the case was fairly presented to the jury, and that there was no substantial error upon the trial which would justify us in disturbing the result. The judgment and order are affirmed. Affirmed.