#### HAMILTON, Respondent, *v.*MURRAY, Appellant.

(No. 1,660.)

(Submitted October 10, 1903.

Decided November 4, 1903.)

*Ejectment*— Verdict—Responsiveness *io Issues*— Appeal *from an Order Denying a New Tmal*— "Decision *Against*Law”— *Review*— Ouster—Intent.

1. A verdict is bad which is not responsive to and decisive upon every material issue submitted to- the jury.

2. Plaintiff in ejectment alleged ownership and possession, and ouster by defendant. Defendant’s answer denied all plaintiff’s allegations. On the trial the controverted issue was as to the location of a boundary line. The jury returned a verdict “in favor of the plaintiff and against the defendant for the possession of the premises in controversy,” etc. *Held,*that the verdict was bad, as not responding to all the material issues.

3. Under Code of Civil Proceduree, Sections 1170, 1171, a verdict which fails to decide every material issue raised by the pleadings, is a “verdict against law,” hence, such question may be reviewed on appeal from the order denying a new trial, though there is no appeal from the judgment.

*814. In ejectment for building on plaintiff's premises, tbe fact that defendant was ignorant of the boundary line, and the intrusion was the result of his mistake or inadvertence, is no defense.

*Appeal from District Court, Silver Bow County; William, Clancy, Judge.*

Action by Patrick J. Hamilton against James' A. Murray. Judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Reversed.

*Mr. M. J. Cavanaugh,*for Appellant.

If a stranger begin to build on land supposing it to be his own, and the real owner, perceiving his mistake, abstains from setting him right and leaves him to persevere in his error, a court will not afterwards allow the real owner to assert his title to the land. *.(Ramson*v. *Dysen,*1 PI. of L. 129 ; Code of Civil Procedure, Sec. 3265.)

It is not necessary to plead license or permission; only technical estoppel should be pleaded, and technical estoppel m by deed or record. *(Hostler*v. *Hayes,*3 Cal. 304; *Churchill*v. *Bauman,*95 Cal. 541, 30 Pac. HO; Broom, Max. p>. 265; Civil Code, See. 4606.)

' The verdict is against law, for the reason that it does not determine the issues presented in the action. *(Singleton*v. *Alee,*3 Hump. (Tenn.) 626; *Cromelinv. Minter,*9 Ala. 594; *Huff-alcer*v. *Boring,*8 Ala. 87; *Sturdevant v. Murrell, &*Port. (Ala.) 317; *Jenkins*v. *Noel,*3 Stew. (Ala.) 75; *Femuick*v. *Floyd,*1 Har. & G. (Md.) 1.72; *Clark*v. *Clark,*7 Yt. 190; *Clay*v. *White,*1 Munf.» (Ya.) 162; *Gregory*v. *Jackson,*6 Munf. (Ya.) 25.)

*Messrs. Sanders & Sanders,*for Respondent.

There can be no equitable estoppel without the element of fraud present. *(Watson*v. *Sutro,*86 Cal. 500; *Stafford*v. *Ilornbuchle,*3 Mont. 487; *Ferris*v. *Coover,*10 Cal. 589, 632; *Alexander v. Kirr,*2 Rawle, 90; *Crest*v. *Jack,*3 Watts, 239; *82*Carr*v. *Wallace,*7 TVatts, 400; *Robinson*v. *Justice,*2 Penn. 22; 11 Am, & Eng. Ency. Law, 434, 439; *McGarrity*v. *By-ington,*12 Cal. 423; *Boggs r. Merced Min. Co.,*14 Cal. 279; *Leonard*v. *Flynn,*24 Pac. 10P9; *Griffith*v. *Brown,*18 Pac. 372; *Griffith*v. *Wright,*6 Colo. 248; *Dean*v. *Parker,*26 Pac. 91; *Rayner*y. *Drew,*72 Cal. 307, 313; *Breeze*v. *Brooks,*71 Cal. 169; *Lux*v. *Haggin,*69 Cal. 255, 266; *Flege*v. *Garvey, Ml*Cal. 371, 377; *Smith*v. *Penny,*44 Cal. 161, 166; *Martin*v. *Zellerbo.ch,*38 Cal. 300, 315 ; *Garyentier*y. *Thirston,*24 Cal. 269, 282; *Clark*y. *Oooledge,*S Kan. 189; *Wendell*v. *Van Rensslear,*1 Johns1. Ch. 354; *Parker*v. *Packer,*2 Mete. 423 ; *Brewer*v. B. <£• IF. P. B. Oo., 39 Am. Dec. 694; *Hill*y. *Fpley,*31 Pa.- St. 331; *Martin*y. *Angelí,*7 Barb. 407; Oiis v. /SWZ, 8 Barb. 102; Big’elow on Estoppel, 502; *Smith*v. *Hamilton,*20 Mich. 438; *Kellogg*y. *Smith,*7 Cush. 375; *Lennox*v. iZim-*dricks,*4 Pac. 515 ; *Christianson*v. *Linford,*26 N. Y. Superior Gt. Pep. 215; *Miller*v. *Plait,*5 Drier, 273; *Swick*y. *Sears,*1 Hill, 17; *Graham*v. PTiie, 20 S. W. 506; *Schmidt*y. *Blanc,*6 Atl. 669; *Collins*y. Pi. *Peters,*27 Atl. 425*‘,McM asters*v. Pres. *etc. I. Co.,*55 N. Y. 222.)

If defendant intends to rely upon an equitable estoppel as a defense in an action in ejectment, before he can take advantage of it as such defense, he must specifically plead it. *(De Votie*y. *McQerr,*24 P'ac. 925 ; *Lanvrne*v. *Dodson,*4 Mont. 560, 590 ; *Arguella*v. *Bours,*67 Cal. 450; *Hicks*v. *Lovell,*64 Cal. 18, 21; *Clarke*v. *Huber,*25 Cal. 594; *Davis*v. *Davis,*23 Cal. 39 ; *.Gariy*v. *Dowdell,*115 Cal. 677, 688.)

In an action in ejectment the legal title will always prevail against an equitable one, if no equitable defense is pleaded. *(Dorn\. Baker,*96 Cal. 206; *Hartley*v. *Brown,*46 Cal. 465; *Hartley et al.*v. *Brown et al.„*51 Gal. 202; *Kentfteld*v. *Hayes,*57 Cal. 409.)

A judgment will not be disturbed because upon some different state of pleadings defendant might have been entitled to- recover. *(Rogers*v. *Kimball,*121 Cal. 247.)

*83ME. COMMISSIONER CALLAWAY

prepared tbe opinion for the court.

This is an appeal from an order denying defendant’s motion for a new trial. Verdict and judgment were for plaintiff. The action is ejectment. The complaint alleges “that on or about the 14th day of August, 1897, the plaintiff ivas the owner, and seised in fee, and possessed and entitled to the possession” of the land sued for, and that while he was so the owner, seised, possessed, and entitled to the possession of the-same, the defendant on saidi day entered into and upon the same and ousted and ejected the plaintiff therefrom, and ever since that day has withheld and still withholds the possession thereof from the plaintiff. Defendant’s ansAver denies all the allegations of the complaint, or, at any rate, has been treated by the parties as accomplishing that result, and also sets up other matters not important to be noticed here. The land in contiwersy is the east ten feet of lot 28, in block 23, original toAvnsite of Butte. It is plain that the complaint and ansAver sought to litigate the folloAving issues: The plaintiff’s oiraership, right of possession, and possession of the land mentioned, and ivhether the defendant has ousted the plaintiff therefrom, or any portion thereof.

The exact point in controversy is whether the. defendant has erected a building Avhich is partly upon plaintiff’s land, and therefore the gravamen of the action is, to1 discover Avhere the boundary line is between the lands of the plaintiff and defendant. At the trial plaintiff’s formal proof as to his ownership, right of possession, and possession of the east ten feet of lot 28 ivas not controverted by defendant. The combatted issue ivas Avhether the defendant had ousted and ejected the plaintiff from the east ten feet of lot 28, or some portion of it, and the parties directed their energies to this point. The plaintiff offered evidence tending to prove that defendant’s building encroaches upon his ground, and the defendant offered evidence to prove directly the contrary. The jury returned the folloAving verdict: “We, the jury in the above-entitled action, find a verdict in favor of the plaintiff and against the defendant for the posses*84sion of tlie premises in controversy in this action, to-wit, the east 10 feet of lot 28 in block 23 of the original townsite of Butte, hlontana, and we assess plaintiff’s damages at one dollar.” It will be observed that this is neither a general nor a special verdict. (Sec. 1100, C. C. P.) It is manifest that when it was rendered the respective parties were left in the same position they occupied when the trial began. So far as the real issues were concerned nothing whatever was: accomplished by the trial. In fact, this case discloses a clear instance of a mistrial. The verdict did not respond to all the material issues framied by the pleadings. It did not decide the question of ownership' or right of possession, and, what is worse, it did not decide the boundary question, which is what the parties were fighting over. In finding for the plaintiff for possession merely, the jury left undecided the question of title, which was directly alleged and directly denied; and the defendant, so far as one can determine from the verdict, may be actually the owner of the ground described in the complaint.

“A verdict is bad if it varies from the issues in a substantial matter, or if it find only a part of that which is in issue. The reason of the rule is obvious; it results from the nature and the end of the pleading. Whether the jury find a general or a special verdict, it is their duty to decide, the very point in issue; and, although the court in which the the cause is tried may give form to a general finding, so as to make it harmonize with the issue, yet if it appears to that court, or to' the appellate court, that the finding is different from the issue, or is confined h> a part only of the matter in issue, no judgment can be rendered upon the verdict.” *(Patterson*v. *United States,*2 Wheat. 221, 4 L. Ed. 224.) .

*“A*verdict which finds but part of the issues, and says nothing as to the rest, is insufficient, because the jury have not tried the whole issue.” *(Holt*v. *Van Eps,*1 Dak. 206, 46 N. W. 689.)

It may be stated as a general rule that the verdict should be responsive to and decisive upon every material issue submitted to the *jury;*in other words, it should comprehend the whole of *85the issue or issues submitted. *(McCleary*v. *Crowley,*22 Mont. 245, 56 Pac. 227; *Tompkins*v. *Corry,*14 Ga. 118; *Meighen*v. *Strong,*6 Minn. 177 (Gil. 111), 80 Am. Dec. 441; *Cannon*v. *Smith,*47 Neb. 917, 66 N. W. 999; *Traun*v. *Wittick,*27 Ala. 571; *Moore*v. *Moore,*67 Tex. 293, 3 S. W. 284; *Gross*v. *Sloan,*54 Ill. App. 202; 22 Ency. Pl. & Pr. 864.)

When the jury returned with this imperfect verdict, the court should not have received it, but should have remanded the jury for further deliberation, with appropriate instructions. *(St. Clair*v. *Caldwell,*72 Ala. 527.)

As this case must be remanded for a new trial, we suggest that the court submit to the jury, in addition to a form of general verdict finding upon all of the issues, a special finding to this effect: Does the building of the defendant encroach upon the land of the plaintiff, and, if so, how far ? The real question for determination being the location of the boundary line between the lands of the litigants, should be finally and definitely disposed of at. the new' trial, and could have been at the trial had upon the evidence adduced.

It may be contended, however, that, as there is no appeal from the judgment, the general rule being that, a verdict against lavT is where the verdict is rendered contrary to the court’s instructions, no newr trial can be granted, because the appellant has failed to pursue his proper remedy. The appellant assigns as error insufficiency of the evidence to' support the verdict, and that it is. against lav. Our Sections 1170, 1171, Code of Civil Procedure, were taken from California, and the construction placed upon similar sections by the supreme court of that state, under the V'ell known rule, is to be followed by us. _ In *Knight*v. *Roche,*56 Cal. 15, the court said: “Section 656 of the Code of Civil Procedure declares a new trial to be ‘a re-examination of an issue of fact in the same court, after a trial and decision by a jury, court or referee’; and the next section provides that such new trial may be granted upon certain grounds; among others, Insufficiency of the evidence to justify the verdict or other decision, or that it is against law.’ Whatever else may be *86meant by the expression ‘decision against law/ we think there is no doubt that it includes a case where the decision is based upon findings, which do not determine all the material issues of fact raised1 by the pleadings.” *Knight*v. *Roche*was an action in ejectment, somewhat similar to the one at bar. (And see *Cummings v.*Conlan, 66 Cal. 403, 5 Pac. 796, 903; *Langan*v. Langan, 89 Cal. 186, 26 Pac. 764; *Nuttall*v. *Lovejoy,*90 Cal. 163, 27 Pac. 69; *Haight*v. *Tryon,*112 Cal. 4, 44 Pac. 318.)

In *Brison*v. Brison, 90 Cal. 323, 27 Pac. 186, it is said that: “When upon the. trial of a cause the court renders its decision without making findings upon all the material issues presented by the pleadings, it is held that such decision can be reviewed upon a motion1 for a new trial. In such a case there has been a mistrial, and the decision, having been rendered before the case has been fully tried, is considered to have, been a decision ‘against law.’ ”

The “findings” of the court correspond to the “verdict” of a jury. As said in *Froman*v. Patterson, 10 Mont. 107, 24 Pac. 692: “A new trial is to be ‘a re-examination of an issue of fact.’ The clause ‘it is against law’ refers to the ‘verdict or other decision’ of the issue of facts tendered by the pleadings. If the decision of the issue was made by a jury, it is usually termed a ‘verdict’; if made by a referee, or by the judge trying an issue without a jury, the determination of the issue of fact is usually termed the ‘decision’ or ‘findings of fact.’ ” In *Brison*v. *Brison,*supra, it is said: “A new trial is a re-examination of an issue of fact in the same court after a trial and decision (Code of Civil Procedure, Sec. 656), and is authorized for the purpose of vacating the former verdict or other decision (Section 657). The ‘decision’ which may be thus vacated is that which was given upon the original trial of the question of fact (Section 632), and upon which the judgment is to be entered. The provision that the judgment is to be entered ‘upon’ the decision (Section 633) implies that it is subsequent to and dependent on the decision. The judgment itself can be reviewed only by a direct appeal (Section 936) taken after its entry *87(Section 939). Tbe proceedings for a new trial are-, however, entirely independent of the entry of the judgment, and may be instituted either before or after its entry, and even while an appeal from the judgment is pending, and the motion may be granted even after the judgment has been affirmed on appeal. If granted, the decision is vacated, and, necessarily, the judgment dependent thereon falls with it. *Spanagel*v. *Dellinger,*34 Cal. 476.” •

As this case must be tried again, it is proper’ to refer to the court’s instructions, although appellant is 'not in a position to complain of those discussed. Instruction No. 1, while correct as an abstract proposition of law, cannot be- said to be applicable to an action of this nature. The reason for this will appear in discussing instruction No. 2, which reads as follows: “The jury are instructed that if you find from the evidence that the defendant in this action built his building, or any portion of it, upon plaintiff’s land, and that such intrusion was through ignorance of the boundary line between plaintiff’s and defendant’s land, and was the cause of the mistake or inadvertence of the-defendant,' and that- there was no purpose or intention on the part of the defendant to disseise or oust the said plaintiff, or interfere with his possession to the part occupied by defendant’s building, then you are instructed as a matter of law that plaintiff cannot recover in this action, as there, is no such disseisin or ouster by defendant as would, give the plaintiff the right to an action in ejectment against the defendant, and your verdict must be for the defendant.” This instruction is erroneous. If defendant has built a brick Avail upon a part of plaintiff’s premises Avitliout the latter’s permission, such trespass constitutes an ouster, regardless of defendant’s intentions. If defendant claims he built the Avail Avitli plaintiff’s consent, the jury should be instructed upon the laAv applicable to such contention. This instruction also conflicts with instruction No. 7, which correctly states the 1'aw.

Some complaint is made by defendant because, as. he- asserts, plaintiff’s Avitnesses Macdonald and Baker, who are surveyors, and testified concerning the boundary line in dispute, gave testi*88mony tending to contradict tbe description contained in plaintiff’s deeds and tbe official plat of the townsite. It does not appear from tbe record that tbe testimony bad such effect. Tbe way to find tbe boundary line is tO' actually locate tbe lines upon the ground, -and; if the original stakes can be found, they will be tbe very best evidence of tbe exact *locus*of tbe land in question.

It is not necessary to discuss any of tbe other errors assigned. We are therefore of tbe opinion that tbe order should be reversed, and tbe case remanded for a new trial.

Per CuexaM.

For the reasons stated in tbe foregoing opinion, tbe order appealed from is> reversed, and tbe cause remanded for a new trial.