Fry v. Summers

39 P. 1118, 4 Idaho 424, 1895 Ida. LEXIS 31

• Court: Idaho Supreme Court
• Decided: April 6, 1895
• Status: Published

Opinion

SULLIVAN, J.

This is an action to quiet title brought by Eichard Fry, as guardian ad litem of Clarence M. Fry, an infant. A general demurrer was interposed to the complaint and sustained by the court, and judgment of dismissal entered, from which judgment this appeal was taken.

The question for determination is, Does the complaint state a cause of action? The complaint alleges that Clarence M„ Fry is an infant, and that Eichard Fry is the duly appointed, qualified, and acting guardian of said infant, for the purposes of this action; that said infant is an Indian, unmarried, not residing upon any Indian reservation, and for whose tribe no-reservation has been’ provided by treaty, act of Congress, or executive order, with other averments, bringing said infant within the provisions of section 4 of an act of the Congress of the United States known as the “General Allotment Act,” approved February 8, 1887 (see 34 Stats. 388), and amendments thereto approved February 38, 1891 (see Stats. 794); that, by virtue of said act of Congress and amendments thereto, said infant, through his mother, Justine Fry, on March 35, 1891, located the land in controversy, it being unsurveyed and unappropriated government land; that after locating said land he, through his said mother, took possession of said land, and improved it; that on July 30, 1891, his mother, in his behalf, filed in the land office at Coeur d’Alene, Idaho, an Indian allotment application for said land; that said lands are agricultural and grazing, and not mineral, lands; that appellant claims title and right to possession by reason of his compliance with the provisions of said acts of Congress; that respondent claims an interest in said land adverse to appellant; that respondent’s claim is without right; that in July, 1893, respondent took possession of said land, ejected appellant therefrom, and has since held possession of the same.

After a careful consideration of this complaint, we are of the opinion that it states a cause of action. Section 4538 of the Eevised Statutes provides that “an action may be brought by any person against another who claims an estate or interest in real property adverse to him for the purpose of determining such claim.” We think the complaint shows that plaintiff has an interest in, and right of possession to, said land; and the complainant alleges that the defendant claims an estate or interest in said land adversely to the plaintiff, and that such claim is without right. It is not necessary for the plaintiff to set out what interest the defendant claims. That is for the defendant to do. The respondent makes no appearance in-this court, and no brief is filed herein on his behalf. The judgment of the lower court is reversed, -with instructions to overrule said demurrer and permit defendant to answer. Costs of this appeal in favor of appellant.

Morgan, C. J., and Huston, J., concur.