Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1897-02-15
FORCE MAY Be USED
10 Defense Of RiShllnl Possession
Of Properly.
CASE OF JOHNSTON Tvs MEAGnU.
Judgment Of Lowir Court Sci Aside
and a Now Trial Or crtd--
other CONF Items.

/
The Supreme court handed down an
opinion today In the case OF Annir
Johnston and VIM. Johnston vs VIM.
Meaghr ct al, and WIN. II. Rowe,
receiver OF the Bear Lake and RIVER
Irrigating and Canal 90. This is O
case on sppeal and grew unt of an
action brought to recover damages for
alleged malicious prosecution and i'm,
prisonment.
II was heard before Judge Hart In
the First judicial district court, who
instructed the jury to md for each
ana every one OF the defendants.
From this decision the plsint IFS APP
pealed. The opinion as given today
reverses the judgment OF the lower
court and a now trial lie ordered. Judge
Zane writes the opinion, anu 1t is con.
CURED In by Justices Bartch and
Miner.
The history OF the case briefly stated
is IS follows.
On the 18th Of June, 1894, the de.
PENDANT Meagbr, as foreman OF gang
Of men and teams, was engaged in the
Construction OF lateral canal, near
the Point Look Out, In Box Elder
county. The work was heinz done
under the direction OF w. II. Rowe, as
receiver OF the Bear Lake and River
Irrigation and Canal company.
While the work was IN progress
Johnston aud hls wife appeared on the
scene, claiming ownership ana title to
the land. Ihey drove the men and
teams of by means OF a Winchester
rife, pistol ann pond poie, threaten.
ing to shoot Meashr II be did not
cease operations.
Meaghr reported the matter to Mr..
Rive, who instructed him and sn-
other employe named Jarvis TO lay
the facts before the county attorney
for Box Elder. The result OF the invet.
LEGATION was the issuance OF warrant
from Justice Holmgreun's court on
the 28th OF June, for tho arrest OF both
defendants, on the charge OF threaten.
Ing to assault with n deadly weapon.
Both were auiudged guilty and re-
quired to each give $500 bond to
Keep the peeoe. Failure TO give bonds
resulted in their remaining in the Gus.
tody OF the sheriff for period OF five
days at the snu OF which q BOND was
furnished anu approved OF by the
ju tice VI the peace. Mis-. Johnston it
was alleged hsd II baby In arms VIII lie
iu prison. The following October
Johnston and his wife sued ior S25, 600
DAMAGE, alleging msilcioua impIisou.
nent as the cauge OF action.
The result was, as before sta cd.
the entering oil judgment on the yer.
diet as ordered by the court against
| the plaintiffs. In the Abstract of pp.
| peal plaintiffs make twenty assign.
| ment OF errors. These are dealt with
by the court In its opinion To-Day.
They sei:
III, appears from the evidence that
the plRinNff have been in the actual
possession ol the tract OF land about
which this contention arose, sixteen or
seventeen years ago; that Meaghr d
Rowe knew that plaintiffs we're in
the actual posse ssinn, and that
MeRghr went 10 plain; f. house on the
land the day before ths attempted or
| try was made and sought piaintfis
| consent 10 construct an irrigatlng
| ditch across the same, which they re-
| fused. Coming to the QUESTION ~ the
| force used 10 drive defendants II the
| land and the subsequent arrest anu i'm
| prisonment Of pininuffi the court say:
Scan one who attempts to take
| possession Of another's land, who is In
| actual possession, forcibly and unlaw-
| fully, when the other forbids, reHists
and threatens to shoot, have him ar
rested and bound over TO keep the
peace, while he unlswfully appropri.
ates the land to his own USE? Can a
party by swearing that he fears an
| other will commit q Threatened crime
| against him If pereists IN tfespsss.
Ing on his property require the other
to give bond to keep the peace while
| he does the unlawful apl?.
"Pesce warrants anu bonds to keen
| the peace are not inteuded to prott CT
| men in doing unlawful acts, against
others. Their object is TO secure an
observancs of law, not to encourage
It's violation. The
PLAINTIFF had the legal right to
defend their possessions by any
degree OF force, sh0rt OF taking human
lie.
The plaintiff, Annie johnston, done
no more THAI defend her posses.
sion against persons who were attempt
ing 10 take possession oil q portion OF It,
and Appropriated permanently to their
use without any legal right whatever,
1t does not appear that there was
any probable cause for tho prosecution
OF the plaintiff, and 1t does not appear
that the facts were July and iGirly
stated TO competent attOrney-st- law
before the prosecution was instituted,
md the prosecution was upon such
advice. Judgments OF
magistrates against such Defendants 10
pr aeoutiona To bind perscns to Keep
the peace and In preliminary exemin.
atl2ns are not conclusive. They sIui.
ply finnish primo iRcie presumption
Of probable caus,.
The order OF holding the Plaintiffs
10 bail should nave been submitted
with all the other com eteut, rcle-
want, ana material evI ence 10
jury upon heis5uo OF probable cause
anu malice under proper Instructions.
Wa ngq tf lbp nm. ftpp that tina rnurr