Denee v. Ankeny Gunning/Opinion of the Court
These cases involve the same opints; the second was decided below upon authority of the first. Ridpath v. Denee, 85 Wash. 322, 148 Pac. 15; Morrison v. Gunning, 91 Wash. 693, 157 Pac. 1199. It will suffice briefly to state and indicate our opinion in respect of the federal questions as raised in No. 147.

The following portions of Remington & Ballinger's Ann. Codes & Stats. of Washington are in force as law in that state:

'Sec. 811. Every person is guilty of a forcible detainer who      either,--

'1. By force, or menaces and threats of violence, unlawfully      holds and keeps the possession of any real property, whether      the same was acquired peaceably or otherwise; or

'2. Who in the nighttime, or during the absence of the      occupant of any real property [unlawfully] enters thereon,      and who, after demand made for the surrender thereof, refuses      for the period of three days to surrender the same to such      former occupant. The occupant of real property within the      meaning of this subdivision is one who, for the five days      next preceding such unlawful entry, was in the peaceable and      undisturbed possession of such real property.'

'Sec. 825. On the trial of any proceeding for any forcible      entry or forcible detainer, the plaintiff shall only be      required to show, in addition to a forcible entry complained      of, that he was peaceably in the actual possession at the      time of the forcible entry; or in addition to a forcible      detainer complained of, that he w § entitled to the      possession at the time of the forcible detainer.'

Relying upon these sections, defendant in error instituted an action of forcible detainer in the superior court for Spokane county, alleging that while he was (and for more than five days had been) in peaceful and undisturbed possession of certain lands inclosed by a good and substantial fence plaintiff in error in the nighttime 'broke the inclosure above mentioned around said above-described premises and entered thereon, and has since said entry continuously occupied and remained upon said premises,' and has refused to surrender them. He asked restitution and damages.

By answer and also by tender of proof plaintiff in error unsuccessfully sought to set up and show that the lands belonged to the United States (having never been granted) were unlawfully inclosed and that he entered in order to initiate a homestead claim. The Supreme Court affirmed a judgment granting relief asked by defendant in error. 85 Wash. 322, 325, 326, 327, 328, 148 Pac. 15, 16. It found that for more than 20 years he had been in peaceful possession of the lands which were fenced and under cultivation, and that at night plaintiff in error broke the inclosure, entered, and refused to remove.

After quoting the two sections set out above, the court said:

'These statutes are clearly peace statutes, and the issues in      a case of this kind are but two: First. Was the plaintiff,      for five days prior to the entry of the defendant, in the      peaceable and actual possession of the land? and, second, Was      the entry of the defendant a forcible entry and an unlawful      detainer? The statute makes no provision for the trial of      title or the right of possession in such a case. Other      remedies are afforded by other statutes to try title or right      of possession. This statute does not contemplate that a      person, even though he be entitled to possession, may, by      force or stealth, obtain possession, and thereby put upon the      plaintiff the burden of proving the paramount title or a      paramount right of possession.'

Replying to insistence that the premises were unappropriated public lands which a qualified citizen might rightfully enter upon and improve under laws of the United States (R. S. § 2289 et seq. [Comp. St. 1916, § 4530 et seq.]) and the state statutes concerning unlawful or forcible detainer interfered therewith, the court declared:

'It is clear, we think, that there is no conflict between the      state statutes and the United States statutes. The United States statutes      have made no provision for determining conflicting rights      under claim of possession, but the determination of these      rights is left to the states to be regulated by state      statutes. * * * Gauthier v. Morrison, 232 U.S. 452, 461 [34      Sup. Ct. 384, 58 L. Ed. 680]. * * * The question in this case      was whether the respondent was in the peaceable and quiet      possession of the real estate at the time of the forcible      entry and unlawful detainer. If he was in the peaceable and      quiet possession, then it follows, of course, that the      appellant could not, by force or by unlawful entry in the      nighttime, dispossess him of that peaceable possession. As      stated above, neither could the question of title, or the      paramount right of possession, be determined in this action.      There is clearly no conflict between the federal and the      state laws upon this question.'

This answer, we think, is sufficient, and nothing need be added.

To the further claim that the premises were fenced contrary to Act Feb. 25, 1885, c. 149, 23 Stat. 321, 322, and consequently plaintiff in error could properly break inclosure and enter in order to initiate a homestead claim, the court replied:

'It is plain that the legal right of the parties to the      possession of these lands cannot be tried in this action. But      if the same could be tried, the appellant did not seek to      show, either that the respondent was in possession of this      particular tract of land without claim of right or color of      title, or in bad faith, for it was apparen ly conceded that      the respondent, or his tenant, was in actual possession of      the tract of land in dispute, and that the respondent had      purchased the land at a fair price and was in possession      thereof claiming to be the owner. * * * Cameron v. United      States, 148 U.S. 301, 305 [13 Sup. Ct. 595, 37 L. Ed. 459].      * * * Even though the respondent had inclosed the land      claimed to have been inclosed, such inclosure was not      necessarily unlawful, because the inclosure is not prohibited      where it is under claim of right or color of title. The      record in this this case conclusively shows that the respondent was holding      the land, which was surrounded by fence, under claim of right      and color of title, and he and his predecessors had so held      it for more than 20 years.'

This reply we also think is correct and adequate.

In Lyle v. Patterson, 228 U.S. 211, 215, 216, 33 Sup. Ct. 480, 482 (57 L. Ed. 804), we held a possessory title may be good as against all except the United States and pointed out the evil consequences which would 'result if possession secured by violence and maintained with force and arms could furnish the basis of a right enforceable in law.'

There is no error in either of the judgments below in respect of any federal question and both are

Affirmed. 

Notes