malicious prosecution. On or about the 15th | prior to 1907, he entered as a homestead 160 day of October, 1908, the plaintiff below, acres of land, apparently intending to inChristopher C. Bugher, was arrested upon a clude the land occupied by him, as aforesaid. criminal warrant issued by a justice of the The land so entered consists of a tier of peace and brought before said justice to an- three 40-acre tracts which, for convenience, swer a complaint filed by the defendant be- may be referred to as the north 40, the midlow, Mark A. Boyer, charging that, on or dle 40, and the south 40, and another 40-acre about the 7th day of August, 1908, the plain- tract adjoining the south 40 on the east; and tiff unlawfully, willfully, and purposely en- by United States patent, dated August 21, tered upon certain lands of one Julia Compton 1907, the lands so entered were conveyed to and severed from the soil certain growing him. On April 29, 1908, Mrs. Julia Compton, grass, being the product growing thereon, the a stepdaughter of the defendant, filed a homeproperty of said Julia Compton. The hear- stead application for the entry of 160 acres ing was continued, upon the application of of land, and received a receiver's duplicate the prosecuting attorney, on account of the receipt showing the payment of the fee and absence of witnesses until some time in No- compensation of the register and receiver of vember. The plaintiff gave bail for his ap- the land office for said entry, but she was not pearance, and at the time fixed for the hear-in possession of any of such land at the time ing by the order of continuance he appeared | she filed her application; nor did she at any ready for trial, whereupon the prosecution time have actual possession thereof prior to was dismissed by the prosecuting attorney, the termination of the criminal prosecution and the plaintiff was discharged. Thereupon aforesaid. The land described in her entry this action was brought, and it resulted in a adjoins on the west the north and middle 40verdict and judgment in favor of the plain-acre tracts of the plaintiff's homestead, as tiff for $125 damages and costs. The section of the statute under which the plaintiff was prosecuted provides, among other things, that "whoever unlawfully enters upon the lands of another and severs from the soil any prod-ed and described in her entry. In support of uct or fruit growing thereon, the property of another," shall be fined in any sum not exceeding $100, to which may be added imprisonment in the county jail for not more than three months. Rev. Stat. 1899, § 4995; Comp. Stat. 1910, § 5839.

It is undisputed that the only basis for the criminal charge against the plaintiff was the fact that on or about the date alleged in the complaint he had cut and removed the hay grown upon certain land generally referred to in the evidence as two contiguous 40-acre tracts, or, respectively, as the north 40 and the south 40; the larger part of the meadow upon which the hay was cut being located upon the north 40. Although the hay was removed from the meadow, there seems to be some dispute as to whether it was removed beyond the boundaries of the 40-acre tracts aforesaid; the legal description of said tracts or the land upon which the meadow is situated being a fact in controversy. The land in question was and had been for many years in the exclusive possession of the plaintiff, and had been inclosed by him, and with his family he had settled upon the same many years prior to 1908, and upon the south 40 had erected a dwelling house in which he lived, barn, corrals, and other improvements: and he also had thereon an orchard and garden. He had cleared and irrigated the land referred to as the meadow, and for many years had cut the hay grown thereon.

He

had constructed a fence approximately along the west line of the land and on the east side of a north and south county road, which fence with others, or natural barriers, brought

the same is described in his patent; and the defendant claimed that the land upon which the hay in question had been grown and cut constituted the east half of the land embrac

that claim, the defendant relied upon a survey made by Mr. Frank Gatchell, the county surveyor, represented upon a plat introduced in evidence as defendant's Exhibit 1; said plat representing the county road and plaintiff's west line of fence as running north and south approximately through the center of the land embraced in the Compton homestead entry, and the two 40-acre tracts in question as the east half thereof. The plaintiff claimed that they were a part of his homestead, and he denied the correctness of said survey and plat; the specific point in dispute being the location of the boundary line between the plaintiff's homestead and the land entered by Mrs. Compton.

It is conceded in the testimony that there is more or less uncertainty and confusion in the surveys in that locality, for the reason that no stone or monument marking the government survey is to be found in the township within which the land is situated, and but one such stone or monument in the township south of it; and it appears that a petition for a resurvey by the government had been signed by the plaintiff and others. Mr. Gatchell testified substantially that, while he could not state that his survey and the plat aforesaid were accurate, he believed the same to be approximately correct. The plaintiff' claims to have a practical knowledge of the subject of land surveying, and testified that the result of a survey made by him of his homestead before making final proof corre sponded as well as he could wish with the land he was in possession of; and that the survey shown on the plat aforesaid (defend

line of his homestead about 54 rods farther | independent survey made at the time, locateast than it should be located. According ing the northwest corner of his homestead, to his testimony, he believed his improvements aforesaid, including the hay meadow, to be located upon his homestead as described in his patent, but he stated that it was impossible for an accurate survey to be made of these lands until a resurvey by the government; and he further stated that if such resurvey, when made, should show that his improvements are not on the land conveyed to him he would hold the land which he had occupied and improved, if he had to split 40's to do so.

but that he measured from the northwest corner of the land occupied by him, which would necessarily be the northwest corner of the land here involved; and he claimed by his testimony that his plat so prepared did not show the land occupied by his improvements to be outside the boundaries of the land described as his homestead. Whether it did so or not depends somewhat upon the tracing of the course of Powder river, a stream which pursues a winding course south and east of the land in question, and crosses some of the other tracts claimed by the plaintiff as a part of his homestead. The course and location of the river was shown upon the plat furnished by the plaintiff to Mr. Gatchell, and also upon defendant's Exhibit 1. In our opinion, there is enough difference between them to have made it proper, if

er the plat so prepared by the plaintiff conflicted substantially with his testimony concerning the relative position of the river and the land occupied and claimed by him, and his belief as to the legal description of the land upon which his improvements and the hay meadow are located.

Some time prior to 1907, plaintiff's house had been removed by him from its original location, and the defendant and two or three other witnesses testified that the plaintiff explained said act by the statement that he had moved the house, so that it would be upon his own land; but the same witnesses testified that after its removal the house redeemed material, to submit to the jury whethmained located upon the same 40-acre tract, though closer to the line claimed by the defendant to be the west line of plaintiff's homestead. The plaintiff testified that he made no such statement to the defendant or any other witness or person, and that no reason existed for the making of such statement, for he believed at all times that the house was upon his homestead. In the year 1904, for the purpose of preparing a plat to be filed with the state engineer, showing the location of certain land embraced in a desert entry of the plaintiff's wife and a ditch constructed or proposed to be constructed for the irrigation of that land, the plaintiff furnished to Mr. Gatchell, the county surveyor, a rough pencil draft of a plat of such land and ditch, upon which was also indicated by the plaintiff the location of his homestead, the north 40-acre tract of which adjoined on the south the west 40 of said desert entry, but such draft did not show the line of the fence aforesaid or the county road. That paper was introduced in evidence as tending to show that thereby the plaintiff had designated the location of his homestead substantially the same as represented upon defendant's Exhibit 1 with relation to the land upon which the hay was cut. In connection with the said paper, a certified copy of the plat made therefrom, as filed with the state engineer, and another plat for the same purpose and similarly filed made by Mr. Gatchell from a survey of the ditch made by him, were introduced in evidence; each of those plats showing that the head gate of the ditch was located by measuring from the north-plied, "I will show you different." He furwest corner of plaintiff's homestead as described in his patent, though there appears to have been a difference as to measurement between the two plats of 230 feet; the plaintiff's plat placing the head gate that much farther from said corner than the Gatchell plat. The plaintiff testified with reference to his plat that it was not drawn from any

It appears that the defendant had at times resided upon some land owned or claimed by his wife situated about two miles from the premises in question, and that for the period of four or five years he had been familiar with these premises. It also appears that the relations between the plaintiff and the defendant were not friendly. The defendant had been a witness in support of a contest instituted by his nephew against the desert entry of the plaintiff's wife. When and how that contest was decided does not appear, but it is shown to have been pending in July, 1908, and that during that month, on one occasion, for some purpose related to the contest, the register and receiver of the land office, accompanied by the defendant, visited the land involved, and that the plaintiff was also present; and it appears that said parties were also at that time upon the land here in question, and that a conversation occurred with reference to it. The plaintiff testified that he then pointed out to the register and receiver and the defendant the land claimed by him as his homestead, including the land here in controversy, and stated that he would hold the land occupied and improved by him, even if it became necessary to split 40's in the middle to do so, and that defendant re

ther testified that the register of the land office said, "Yes," to such statement, and that the receiver stated: "Your place is where you claim it is until it is proven by the government. Your homestead here is all right. You don't need to worry about your homestead at all." The register of the land office testified as a witness in the case on behalf

the justice of the peace, signed and filed it, and procured the issuance of the warrant. It appears that both Mr. Griggs and Mr. Bennett knew, whether the fact was communicated to them by the defendant or not, that Mrs. Compton had merely filed upon the land embraced in her homestead entry, and that she was not in actual possession thereof. It also appears that Mr. Griggs had previous information of the fact that some of the plaintiff's improvements, including his house, were upon that part of the land in question referred to as the south 40-acre tract, and that some time in the latter part of July, 1908, he had prepared a notice for another party acting for Mrs. Compton, requiring the plaintiff to remove his improvements from the Compton homestead. Mr. Griggs testified that, while he did not know of his own knowledge that such improvements were on the Compton homestead, he knew that there was a dispute in regard to that matter. It clearly appears that Mr. Bennett was called into the case merely for the purpose of assisting the prosecuting attorney, and not as the employed attorney of the defendant; and also that the criminal proceeding was dismissed by the prosecuting attorney, for the sole reason that he and associate counsel had come to the conclusion, upon an examination of the authorities, that the fact that Mrs. Compton had not been in actual possession of the land rendered it at least very doubtful or uncertain whether the act of the plaintiff in cutting the hay amounted to a violation of the statute as charged. A further fact should be mentioned that some time in the latter part of September the defendant, in company with Mrs. Compton and others, went upon the premises in question and within the plaintiff's inclosure, for the purpose, as the defendant testified, of building a house thereon for Mrs. Compton, but they were ordered off the premises by Mrs. Bugher, the plaintiff being absent, whereupon they withdrew. Their intention appears to have been to locate Mrs. Compton's house within the plaintiff's said inclosure, not more than 150 yards from the plaintiff's house, and in the immediate vicinity of some of his other improvements.

of the plaintiff, and corroborated substantial- as she could. He then took the complaint to ly his testimony as to the statement made by him, as aforesaid, and to the response made by the defendant; and he further testified that the defendant appeared at the time to be angry, and that he applied an abusive epithet to the plaintiff. When the defendant was testifying as a witness, he was interrogated on cross-examination with reference to the above-mentioned conversation, and he admitted that the plaintiff continually spoke of his homestead, and that he said that he would not recognize the Gatchell survey, and that he would hold the land upon which his improvements were located if he had to split 40's to do so, but testified that plaintiff did not describe or point out what he claimed as his homestead; and he denied that either of the land officers had in any way, on the occasion above referred to, assented to the statement made by the plaintiff to the effect that when the land was resurveyed he would hold the land which he had occupied and improved. The defendant also testified that he had been acquainted with the premises in question five years, and knew of his own knowledge that the plaintiff had resided upon it during that time, and that in one year prior to 1908 he had assisted in cutting hay for the plaintiff upon the meadow in question. In August, 1908, Mrs. Compton then residing in Buffalo, the county seat of the county wherein the lands are located, was informed by her brother that he had seen the plaintiff engaged in cutting the hay with a rifle attached to the mowing machine, and that at that time the hay had been cut upon about four or five acres of the land. She thereupon requested the defendant to consult an attorney for the purpose of recovering the hay. The defendant consulted Mr. Griggs, the prosecuting attorney of the county, and the latter suggested that a civil suit would be too expensive in view of the small quantity of hay that had then been cut, and advised the defendant to procure further information, In October of the same year, shortly before filing the criminal complaint, the defendant in the meantime having visited the premises and discovered that all of the hay had been cut upon the meadow and removed therefrom again consulted Mr. Griggs, who then suggested and advised the criminal proceeding 1. It is contended that, as the criminal and prepared the complaint, requesting, how-prosecution was dismissed for the reason ever, that the defendant submit the complaint to Mr. Bennett, another attorney, whom he would ask to assist him in the matter, stating as the reason for doing so that he was then very busy. The defendant took the complaint to Mr. Bennett and consulted with him about it, whereupon the latter also ad-action. vised that the criminal prosecution would hold; and the defendant reported to Mr. Griggs what Mr. Bennett had said, and inquired if he should get Mrs. Compton to sign the complaint, but was advised that as he

that Mrs. Compton had not been in possession of the land, and not because of the discovery of any facts previously unknown to counsel, or not communicated by the defendant, that the advice acted upon by the defendant constituted a complete defense to the

And at the conclusion of the evidence counsel for the defendant orally moved the court to direct a verdict for the defendant, on the ground that by the uncontradicted evidence the defendant acted upon the advice of the county and prosecuting attor

complaint, and that at the time the complaint, is a question of judicial opinion. What was made the defendant made a full and facts, and whether all or sufficient undisputcomplete statement of the facts within his knowledge to such prosecuting attorney. An exception was taken to the denial of that motion.

ed facts, constitute probable cause is therefore determined exclusively by the court. The general rule is that, where there is a substantial dispute as to what the facts are, it is for the jury to determine what the truth is, and whether the circumstances relied on as a charge or justification are sufficiently established, and for the court to decide whether they amount to probable cause. According to the general, but not the universal, opinion, it is error to leave it to the jury, not only to determine the facts, but also whether they constitute probable cause; the court, not the jury, should draw that inference. The court may take a special verdict and de

[1-4] To maintain an action for malicious prosecution, it is necessary for the plaintiff to establish: (1) That the prosecution complained of was instituted without probable cause. (2) That the motive in instituting it was malicious. (3) That the prosecution has terminated in the plaintiff's favor, as by his acquittal or discharge in the case of a criminal prosecution. The concurrence of a want of probable cause and malice is essential. Legal malice is shown when it appears that the prosecution was instituted from any im-termine the question or probable cause thereproper or wrong motive; and it may be inferred from the want of probable cause, though that inference is not a necessary one. The want of probable cause cannot, however, be inferred from any degree of malice. When, therefore, the existence of probable cause is established, the defendant is entitled to judgment.

on as a matter of law, or it may instruct the jury hypothetically within the range of facts which the evidence tends to establish as to what constitutes probable cause, and thus leave it to the jury to determine only the facts."

The question is well considered in a recent Washington case in discussing the con[5] The existence of probable cause in- tention that no want of probable cause was volves the consideration of what the facts shown, notwithstanding that the court had are and what may reasonably be deduced submitted the issue of probable cause to the from the facts. Hence it is a mixed question | jury to be determined as a fact, instead of of law and fact. If the facts are not in dis- deciding the question as a matter of law. pute, the question is for the court, but upon We quote from the opinion: "No very defidisputed facts the jury must be left to pass nite rule can be laid down in this class of 'under proper instructions. Cooley on Torts, cases, for the issue of probable cause is 181. In Stewart v. Sonneborn, 98 U. S. 187, sometimes to be decided as a matter of law; 194, 25 L. Ed. 116, Mr. Justice Strong, de- at other times, to be decided as a question livering the opinion of the court, quoted ap- of fact, as stated in some of the cases. The provingly the following statement of the doc- last hypothesis is not strictly accurate. trine found in Sutton v. Johnston, 1 T. R. When not determined as a matter of law, it 493: "The question of probable cause is a is considered rather as a mixed question of mixed question of law and of fact. Whether law and fact; that is to say, the facts being the circumstances alleged to show it probable disputed, the court should declare the law as are true, and existed, is a matter of fact; applied to the facts of the particular case, but whether, supposing them to be true, they and leave it to the jury to say whether the amount to a probable cause is a question facts as found by them bring the party acof law." And the learned justice continued cused within the rule of probable cause." the discussion of the question by saying: "It The statement of the law found in Cooley on is therefore generally the duty of the court, Torts (3d Ed.) is then quoted in the opinion, when evidence has been given to prove or including the following: "As to what facts disprove the existence of probable cause, to are sufficient to show probable cause is a submit to the jury its credibility and what question of law for the court, and whether fact it proves, with instructions that the such facts are proved by the evidence is a facts found amount to proof of probable question for the jury. "The court should cause, or that they do not. Taylor v. Wil-group in its instructions the facts which the liams, 2 Barn. & Adol. 845. There may be, evidence tends to prove, and then instruct and there doubtless are, some seeming excep- the jury that, if they find such facts to be tions to this rule, growing out of the nature established, there was or was not probable of the evidence, as when the question of the cause, and that their verdict must be accorddefendants' belief of the facts relied upon to ingly.' It is not competent for the court to prove want of probable cause is involved. give to the jury a definition of probable What their belief was is always a question cause, and instruct them to find for or for the jury." against the defendant according as they may determine that the facts are within or without the definition." As to the case then before the court, it was said: "In the case at bar, the facts were disputed, and there is much room for difference of opinion. The instructions of the court were within the

With reference to the province of the court and jury, respectively, in determining the existence or want of probable cause, the result of the authorities in this country is stated in 26 Cyc. pp. 106-109, as follows: "Primarily what constitutes probable cause

rule laid down by Judge Cooley. They are | vised the prosecution. But that would not singularly explicit, and, after defining proba- protect the defendant, unless he had made a ble cause, the court, by hypothetical reference to the facts disclosed by the evidence, left it open to the jury to say whether there was a want of probable cause or not." In that case a judgment for the plaintiff was affirmed. Finigan v. Sullivan (Wash.) 118 Pac. 888.