Clark v. Langenbach

SEVERENS, Circuit Judge. This case was here on a former occasion upon a question relating to the jurisdiction of the Circuit Court, and was remanded to that court for further proceedings. Roberts v. Langenbach, 119 Fed. 349, 56 C. C. A. 253. For a statement of the nature of the action, reference may be had to the opinion of this court there reported. It is sufficient now to say that the suit was brought under a statute of Kentucky providing a summary proceeding for the recovery of the possession of lands from which the plaintiff has been forcibly ousted. The title is not involved further than it may characterize the possession of the plaintiff. The petition elaborates with unnecessary fullness the origin of the rights of the respective parties, but the substance of it is that the plaintiff was in possession of the lands described under what is termed a “mineral and oil lease” from one W. H. Mann, granting the right to explore, dig, mine, and sink wells and operate the same for the purpose of obtaining and removing the minerals, oil, and gas which might be found, and the construction of the necessary buildings and pipe lines; for which purposes the lessees were “to have and to hold the said premises” for the term of 10 years from May 23, 1900, rendering to the lessor a certain proportion of the oil, and a specified price for the minerals which might be produced. The lessor reserved the right to use and enjoy the land for the purpose of tillage, but not so as to interfere with the rights granted by the lease. The petition also states that the lessees went into possession of the premises for the purposes specified in the lease; that the defendants, with knowledge of this lease, subsequently procured a lease of similar character from Mann, and forcibly entered upon and dispossessed the plaintiffs while so in possession under the former lease; and the prayer was that the possession be restored to the plaintiffs. The answer denied that the sum involved in the controversy amounted to as much as $2,000, and claimed that for that reason the court was without jurisdiction, but admitted the plaintiff’s lease, claiming, however, that it had been forfeited; admitted the procurement of their own lease, but denying that the plaintiffs were in possession at the time stated in the petition, or that the defendants forcibly entered the said premises. The cause was tried by the court and a jury. Evidence was produced by the parties upon the question of the sum or value of the subject of the controversy, and also upon the question as to whether the plaintiffs had been forcibly dispossessed. The court, in its instructions, left to the jury the question as to whether the value of the matter in controversy amounted to the sum of $2,000, exclusive of interest and costs, and instructed them that, if they should find for the plaintiff upon the issue respecting the amount involved, they should render a verdict on the merits for the plaintiffs; but that if they should find for the defendant on the issue relating to the jurisdiction, they should render a general verdict for that party. The jury found a verdict for the plaintiff which [758] signifies that they found the issue relating to the jurisdiction for the plaintiff, and accepted the court’s instruction that the evidence required a verdict for the plaintiffs on the merits, if they reached that question. A judgment for the plaintiffs having been entered, the defendants brought the case here on a writ of error. There are several assignments of error, but, as counsel have preferred to discuss the questions they desire to- submit in a more general way than they are presented by the particular language of their assignments, we are content to follow their method. 1. It is contended that the lease to the plantiffs “was a mere option, which, not having been exercised, the owner of the land might treat as abandoned,” the assumption being that the lease did not bind the lessees to do anything, and that they had not in fact done anything, under the lease. And on this contention counsel submit an argument fortified by reference to decided cases bearing on the construction of such leases. But we held in Allegheny Oil Co. v. Snyder, 106 Fed. 764, 45 C. C. A. 604, and Logan Natural Gas Co. v. Great Southern Gas Co., 126 Fed. 623, that, notwithstanding there was no express covenant on the part of the lessee, there was an implied stipulation that he would within a reasonable time proceed with the exploration and development of the lands leased, and that, if he did not do so, the lessor might treat the lease as forfeited. But we need not pursue that subject. If the plaintiffs were actually in possession under a claim of right, that was enough. The defendants, whether they had the better right to the possession or not, could not lawfully acquire it by force. If they should venture on such a course, they would expose themselves to such a proceeding as this for the purpose of depriving them of the advantage gained by violence and replacing the parties. The question of title is not to be tried. 2. The lease to the plaintiffs was properly given in evidence for the purpose of showing the extent of the possession acquired by the plaintiff’s entry upon the premises; that is to say, to show that the possession extended to the boundaries of the land described as granted by the lease. 3. It is contended also that the possession accorded by the lease was not such as would entitle one to have this statutory remedy. It is claimed that Mann was the party actually in possession, and, if their entry was unlawful, he alone could complain. This contention proceeds upon an erroneous assumption. If the plaintiffs entered under their lease, their possession was superior to that of Mann, for by its ’ terms his possession was to be subordinate to the right of possession given to his lessees. The possession taken thereunder would, we think, be sufficient to protect the plaintiffs against a violent dispossession, and entitle them to the remedy provided by this statute. 4. From these conclusions the case is narrowed to the question whether the court was right in taking the view that the evidence left no fair room for doubt as to whether the defendants intruded upon the possession of the plaintiffs by violence. The proof was that the agents of the plaintiffs had, for several days before the difficulty occurred, been digging and prospecting upon the land, and were upon it at the time when the defendants’ party entered, and protested against the [759] entry of the defendants. High words followed. The defendants persisted, and threatened violence to gain their point. No blows were struck, but they were threatened. Calmer counsels, however, prevailed. The plaintiffs’ agents gave way, asserting that legal steps would be taken to obtain a remedy. There were some disputes in the evidence in respect to the minor particulars of the transaction. But there was none as to the substantial facts that the defendants entered with a show of force, and that the plaintiffs opposed it as far as they could without engaging in a combat. They were not required to go to that extremity in order to lay the ground for complaint under the statute. The object of the law was to prevent strife, and it would be inconsistent with its purpose to require that the injured party should have resisted to the point of a physical struggle. The statute defines a forcible entry as “an entry without the consent of the person having the actual possession.” Civ. Code Ky. 1900, § 452. Upon that interpretation of the law a verdict finding that the defendants’ entry was not forcible would have been absurd. We think the court did not err in holding that a forcible entry was proved beyond fair doubt. There are no other questions of sufficient importance to require separate discussion. The judgment must be affirmed, with costs.