Eisele v. Oddie

128 F. 941, 1904 U.S. App. LEXIS 4723

• Court: U.S. Circuit Court for the District of Nevada
• Decided: March 21, 1904
• Docket: No. 733
• Status: Published

Opinion

HAWKEY, District Judge

(orally). It is claimed by defendants that plaintiff cannot maintain this action. This contention is based solely upon the ground that the testimony offered on behalf of plaintiff is wholly insufficient to sustain the action. The specific grounds of this contention are: (i) That diverse citizenship has not been established; (2) that the action cannot be sustained as an action of forcible entry; (3) that it cannot be sustained as an action in trespass quare clausum fregit. In connection with these points it is argued that the plaintiff’s own evidence shows “that he had abandoned his possession” of the lot and tent.

1. Upon the trial plaintiff testified that he was a gardener by occupation, and had resided in Inyo county, Cal., for about 29 years; that in June, 1901, he left Inyo county, and went to Tonopah, as much for his health ás for any other purpose, as the doctors advised him that it would be good to get out in the hills. “Q. At the time you left Inyo county, what intention did you have about returning? A. I intended to return. That is the only place I would live — -in the state of California — and I have always said so. Q. Have you ever had, during the last twenty-nine years, any residence except Inyo county, California? A. No, sir; only during the short time I have been in Tonopah, and been delayed here. Q. Your home during all those years has been in Inyo county? A. Yes, sir. Q. And it is there now? A. Yes, sir; that is my residence, my home.” The cross-examination did not bring out any fact in opposition to his testimony in chief. In June, 1901, the plaintiff was an actual, bona fide resident and citizen of Inyo county, Cal. According to his sworn testimony, he did not abandon his residence there. He left to go to Tonopah, Nev., with intent to return to Inyo county, Cal. The mere fact that he sold his gardening tools before leaving Inyo county does not, of itself, prove that he left without intent to return. The circumstance that he took most of his clothing with him is of little significance one way or another. The fact that plaintiff was a laborer with but little means, and owned no dwelling or land, and was without any family, is a matter proper to take into consideration, with other matters, as to his intention, but does not, of itself, justify the court in declaring that it was not his intention to return in the face of his positive evidence upon this point. Citizenship, not the place of residence, is the test of jurisdiction. The fact that plaintiff was living in Nevada at the time this suit was brought was prima facie evidence of his citizenship here, but it is not conclusive. A person may be a citizen of one state or country and reside for the time being in another. McDonald v. Salem Flour-Mills Co. (C. C.) 31 Fed. 577; Collins v. City of Ashland (D. C.) 112 Fed. 175, 178, and authorities there cited. In Chiato-vich v. Hanchett (C. C.) 78 Fed. 193, this court held that “a defendant who is a citizen and resident of another state than that of the plaintiff is entitled, under the act of 1887-88 [Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508)], to remove to the federal court a suit brought against him in the state court, although at the time the suit was commenced and the petition for removal filed he was temporarily residing in the state where suit was brought.” The place where a person lives is taken to be his domicile until facts adduced establish the contrary. Anderson v. Watts, 138 U. S. 694, 706, 11 Sup. Ct. 449, 34 L. Ed. 1078; Tracy v. Tracy, 62 N. J. Eq. 807, 810, 48 Atl. 533. The question of a change of domicile is mostly one of intention of the party, as to which his declarations must control, unless overthrown by acts inconsistent with them. Where a change of domicile is alleged, the burden of proving it rests upon the party making the allegation. To effect a change of domicile, there must be residence in the new locality, and intention to remain there. Mitchell v. United States, 21 Wall. 350, 353, 22 L. Ed. 584; Desmare v. United States, 93 U. S. 605, 609, 23 L. Ed. 959; Marks v. Marks (C. C.) 75 Fed. 321, 324; Succession of Simmons (La.) 34 South. 101, and authorities there cited.

In Chambers v. Prince (C. C.) 75 Fed. 176, the court said:

“A party may be a resident of a place, and yet not domiciled there; for, while he is resident there, still if he does not intend to make that Ms permanent place of abode, but has always the ‘animo revertendi,’ there can be no doubt that the mere fact of his residing for the time being in a place does not establish a domicile at the place of residence. A. man always retains his domicile if he leaves it ‘animo revertendi.’ ”

In the present case some portions of the testimony, if left to a mere inference, might seem unreasonable, but there are no facts stated that are inconsistent with the sworn statement of the plaintiff that it was his intention to return to California.

In Sharon v. Hill (C. C.) 26 Fed. 337, 342, the court discussed the question herein involved at some length. Among other things, it said:

“ ‘Citizenship’ and ‘residence,’ as has often been declared by the courts, are not convertible terms. Parker v. Overman, 38 How. 141 [15 L. Ed. 318]; Robertson v. Cease, 97 U. S. 648 [24 L. Ed. 1057]; Grace v. American Cent. Ins. Co., 109 U. S. 283 [3 Sup. Ct. 207, 27 L. Ed. 932]; Prentiss v. Barton, 1 Brock. 389 [Fed. Cas. No. 11,384], (Numerous other cases might be cited upon this point.) Citizenship is a status or condition, and is the result of both act and intent. An adult person cannot become a citizen of a state by simply intending to, nor does any one become such citizen by mere residence. The residence and the intent must coexist and corres]>ond; and though, under ordinary circumstances. the former may be sufficient evidence of the latter, it is not conclusive, and the contrary may always be shown; and when the question of citizenship turns on the intention with which a person has resided in a particular state, his own testimony, under ordinary circumstances, is entitled to great weight on the point.”

In that case it was admitted that the plaintiff had resided in California for a great number of years, but he testified “that he never intended to become a citizen of California, or cease to be a citizen of Nevada.” In commenting upon the whole testimony, the court said:

“The evidence only proves that the plaintiff was generally an inhabitant of this city (San Francisco) for a few years before the commencement of this suit. But when we consider that the .plaintiff swears positively that ho never intended to become a citizen of this state, and that no act of his while here is inconsistent with such purpose,' ⅜ ■ * * the mere fact of the plaintiff’s bodily presence here for one or ten years, under the circumstances, is of very little moment in determining his citizenship.”

The testimony given by the plaintiff is, in my opinion, sufficient to show a diversity of citizenship between the parties.

2. Can this action be sustained upon the testimony given by the plaintiff? This question is not, as claimed by defendants, whether it can be sustained as an action of forcible entry and unlawful detainer, or for trespass quare-clausum fregit. There were doubtless several remedies afforded plaintiff by the law of which he might have availed himself. He could have brought an action of forcible entry and unlawful detainer, and prayed for restitution. Cutting’s Comp. Haws Nev. §§ 3822, 3823. Forcible entry and unlawful detainer is an indictable offense as a misdemeanor in every state in which common-law crimes are recognized, and also in states where by statute it is made a criminal offense. 9 Ency. Pl. & Pr. 25, 45; Ex parte Webb, 24 Nev. 238, 241, 51 Pac. 1027. The testimony in such cases would, of course, have to be applicable -to the relief sought. But the answer to defendants’ contention that the action cannot be maintained because the complaint did not demand restitution of the property, which is the main remedy of an action of forcible entry and unlawful de-tainer, the recovery of damages being merely incidental thereto, is found in the fact that this is not an action pure and simple of forcible entry and unlawful detainer, either civil or criminal, or of an action of trespass quare clausum fregit, although in several respects it is somewhat analogous thereto, especially in the fact that possession, not title to the property, is alone involved, and that force was used by defendants in making an entry upon the premises. In actions for forcible entry the title to the property is not in issue either in civil or criminal proceedings, and, as a general rule, the question of possession is alone involved, and the title cannot be inquired into. It is a summary proceeding, in which an actual peaceable possession of the premises must be shown to have been forcibly taken away or invaded by the defendant; and, when this is shown, the law will restore the possession to the party complaining, even if the defendant be in fact able to show a title. The reason of this rule is that, if a party have a paramount title to property which is in the actual possession of another, who persists without a valid right in retaining that possession, he shall not do himself justice by force, for this would be contrary to the law of the land, 'but he shall apply to the courts of justice provided for such purposes, where his rights will be recognized and enforced. In the present case it clearly appears that plaintiff was deprived of the possession of the lot and tent by acts and appearances tending to inspire a just apprehension of violence, and calculated to cause a breach of the peace. The books are full of cases where it has been said that actual physical force is not necessary; that it is always sufficient if the entry is attended with such a'display of force as manifests an intention to intimidate the plaintiff, or deter him from defending his rights, or to excite him to repel the invasion of his possession and thus bring about a breach of the peace.

The character of this action must be détermined by the pleadings. It is an action to recover damages for the alleged wrongful and unlawful acts charged to have been committed by the defendants to the plaintiff’s injury. It presents some unusual and unpleasant features and peculiar facts, and in this respect may be said to be exceptional in its character. But the right to recover damages for wrongs and injuries is well settled. The plaintiff, having different remedies, may select the form of action which will give him the relief he seeks. The original complaint was defective (Eisele v. Oddie [C. C.] 120 Fed. 695), because it did not apprise the defendants of the nature of the claims against them, and the extent thereof. A statement of the injuries, with a general averment of the sum as to the damages, would only authorize the recovery of such damages as would naturally and ordinariiy follow from such injuries. The complaint was amended to make it more specific, especially so as to set forth causes of special damages; the general rule being that special damages, which are the natural, but not necessary, result of the injury complained of, must be specifically alleged. Such injuries do not necessarily result from the defendants' wrongful act, but flow from it as a natural and proximate consequence; hence they must be specially alleged, in order that the defendant may have notice thereof, and be prepared to meet the same upon the trial. 5 Ency. Pl. & Pr. 719. This case furnishes the necessity for the strict enforcement of this rule. As was said by the court in Pueblo v. Griffin, 10 Colo. 366, 367, 15 Pac. 616:

•*If from any peculiarity in the circumstances or situation of the injured parly other loss accrued to liim thereby, such peculiarity must be alleged and proven to justify the recovery of such damages.”

There was no demurrer to the amended complaint, upon which the action was tried. Its sufficiency is not questioned. The only legal objection made by the defendants is to the sufficiency of the evidence to sustain it.

3. Was the plaintiff in possession of the lot and tent at the time the defendants, with a multitude of people present, forcibly removed the tent and burned it? It is claimed that “plaintiff’s own evidence shows that he had abandoned his possession,” first, because of his written agreement renouncing all claim or right thereto, and promising “to vacate said ground in ten days”; and, second, because he left the premises on January 18, 1902, and never slept in the tent thereafter, the removal of his tent occurring on January 20th. The fact that plaintiff had agreed to leave and surrender his rights within 10 days, and did not do so, although he had started to remove his goods and chattels, and had slept in a dug-out for two nights, did not deprive him of the possession of the premises. The testimony^ shows that some of his effects were still in the tent, and he was on his* way there, and was present when the removal occurred. There cannot be any abandonment of the property while the party is in possession of any part of it. Mitchell v. Carder, 21 W. Va. 277, 285, and authorities there cited. Plaintiff was not a mere intruder upon the premises. He had been in the actual possession of the premises for a period of six months. The specific acts which are required to constitute a sufficient possession are dependent upon the conditions and circumstances of each case; hut the controlling principles applicable to all cases are embodied in the general statement “that any overt act indicating dominion and a purpose to occupy, and not to abandon, the premises, will satisfy the requirements as to possession.” Vol. 13 Am. & Eng. Ency. Law (2d Ed.) 746. In actions for forcible entry and unlawful'detainer it has been held — in line with the rule above stated — that actual residence upon the premises is not always necessary. Valencia v. Couch, 32 Cal. 339, 91 Am. Dec. 589. This case is also an interesting one upon the question as to what constitutes force. And that continuous presence is not required. Giddings v. The ’76 Water Co., 83 Cal. 96, 23 Pac. 196; Sitton v. Sapp, 62 Mo. App. 197, 205. Rocking the doors of a house and taking the key constitutes, in ordinary cases, evidence of an actual possession'of the house or let upon which it stands. Haley v. Palmer, 9 Dana, 321; Sitton v. Sapp, supra; Davidson v. Phillips, 9 Yerg. 93, 30 Am. Dec. 393.

4. In reply to the suggestion of counsel that the proofs do not show that the value of the property in controversy exceeds $2,000, it is only necessary to say that the general rule is that, so far as concerns- courts of the first instance, the amount or value stated in the plaintiff's complaint is the sole test of jurisdiction. West v. Woods (C. C.) 18 Fed. 665, and authorities there cited; Hill v. Gordon (C. C.) 45 Fed. 276; Western Union Tel. Co. v. White (C. C.) 102 Fed. 705, 707; Butters v. Carney (C. C.) 127 Fed. 622. There are no exceptional facts in this case which take it out of this general rule.

5. Upon the merits but little need be said. Conceding that the defendants, who claimed to be acting for the real owners of the lot, under all the circumstances of this case, might have had the right to enter upon the premises and peaceably remove the plaintiff therefrom, yet neither they nor the other defendants had any right to remove him by force, or to destroy his property. The law was clear, and the courts were open for the protection of the owners of the property, if, as defendants contend, the plaintiff had no legal right-thereto. The committee consisting of defendants and others had no right to take the law into their own hands. It may be that some of the acts and conduct of the plaintiff, his situation and surroundings, as well as other circumstances in the case, may have caused the belief on the part of the defendants that he was not acting in good faith in asserting ownership to the lot and tent, and that his promises could not be relied upon, and induced them to hasten the proceedings in a summary way, without any actual intent on their part to proceed in a wanton or malicious manner. These matters may be considered in mitigation of some of the damages. But all the acts of the defendants were without authority of law, and were of a character which cannot be sanctioned in a court of justice, however meritorious their motives or'intent may have been. In whatever way or manner the cause of action may be treated, there could be no justification or excuse for the conduct of defendants. The burning of the tent and contents of itself shows the result that is so often liable to happen when self-constituted committees assume the right to enforce the law in their own manner. The fexcitement produced by a multitude of people proceeding in a riotous manner always has a tendency to result in an utter disregard of the law. Hence it is that statutes are passed and actions at law maintained to prevent such injuries or wrongs as were committed in this case, regardless of any question as to the real ownership of the property.

As to the damages that should be allowed. The plaintiff was certainly very liberal as to the value of the heirlooms, the Bible, family photographs, gold spectacles, private letters, and documentary papers, and also of the value of the damages he sustained by the “wrongful invasion of his constitutional rights.” There was extravagant testimony on both sides, and a substantial difference of opinion, and some conflict, especially as to what articles were in the tent at the time of its removal and destruction; but these things need not be discussed. The indignities, insults, and insinuations, partaking of the nature of threats against the plaintiff, should not be entirely ignored. One other point should be noticed. The plaintiff testified that he left $135 in bills in a box in the tent, and that it was taken and destroyed by the defendants. The defendants at the trial sought to question this fact, but I am not prepared .to say that the plaintiff’s testimony upon this point was so unreasonable as to make it unworthy of belief.’ The most that could be said in favor of defendants would be that they did not see it, and did not know or believe it was there. Without further comment, I quote, as applicable to this case, the language of the court in Eten v. Luyster, 60 N. Y. 252, 260, where the question was presented as to whether or not the leaving of money in a stable was so unreasonable that the defendants ought not to be charged with its destruction. In that case the court instructed the jury:

“It is for you to consider all the circumstances of this case, and, in view of the testimony as to this man’s position and habits, and his manner of conducting business, and in the light of all the evidence before you, to pass upon the probability or improbability of an intelligent man in his condition keeping his money in this way. It is not for me to say that a man should have done so and so with his money. It is for you to judge whether he took such a course as a man in his class of life, in that kind of business, and with his opportunities for knowledge, would reasonably take under such circumstances. You are to be guided by the facts and circumstances in determining this qtiestion.”

The court, in discussing the question as to the character of damages which -the plaintiff was entitled to recover, said:

“The plaintiff owed no duty to the defendants, and was not called upon to gather up the fragments of his scattered and broken chattels, but was at liberty to leave them where the defendants left them, and look to the latter for their value. They were out of his possession by the tortious act of the defendants, by whom, and whose acts, they were lost or destroyed. The plaintiff complains of the pulling down and destruction of his building and the taking! and conversion of his personal property, as well as the damages sustained by a loss of his business. The latter claim was excluded from the consideration of the jury by the court, but evidence of the other items of loss and damage were clearly -within the allegations of the complaint, and admissible. For all loss occasioned by tbe trespass, whether in the destruction of the chattels or the loss of money that was kept upon the premises, the plaintiff was entitled to recover. That the money was kept in an unusual place did not take it out of the protection of the law, or affect the liability of the defendants for their tort. They acted at their peril, and must respond for the consequences. The loss of the money, although the defendants may not have suspected its presence, was the direct and necessary consequence of the acts of the defendants.”

Considering all the facts and circumstances of this case, I assess the damages at $500. Upon filing the proper findings of fact herein, let judgment be entered in favor of plaintiff for the sum of $500, and for costs.