tlers upon land traversed by its roadbed is concerned. In this case the line of the railroad was located October 30, 1880, and the road was built in 1882. No homestead entry was made on the land until after the construction of the road, and the final proof of defendant in error, Jones, was not made until about 10 years afterwards, when he procured the relinquishment of a homestead entry of one Ella Sharp, made March 7, 1883. It will be seen that neither the right of Jones as a homestead entryman or any right he may have acquired through the relinquishment of Ella Sharp reached back to the date of the construction of the road, and the Supreme Court holds that the actual construction of the road was notice to the homestead entrymen, which precluded them from acquiring any title by homestead entry to the right of way occupied by the railroad company. The decision in that case does not take into consideration two pre-emption contests made on the land prior to the construction of the road, probably because the defendant in error, when he made final proof, was not a successor in interest to either of them, and the right of such pre-emption entrymen had expired under his homestead entry. Under these circumstances, the determination of the Supreme Court that the railroad company's title to its right of way was superior to the title of Jones, under his homestead entry, is not an authority applicable to the facts of the case under consideration.

The case of Bonner v. Rio Grande R. R. Co., 31 Colo. 446, 72 Pac. 1065, has no application to the facts in the case at bar, for the reason that the original locators of the mining claim had granted to the railroad a right of way across the claim, and afterwards abandoned the claim. The case only determines that after the abandonment, and after the construction of the railroad, a relocation of the claim was subject to the railroad easement. There was no contest in reference to the mining claim, but, if there had been, it could have made no difference with the result, because of the grant of the right of way by the original locators, and because there is no provision of law granting the preference right to the successful contestants of a mining claim over any other occupant of the land.

In the case of Alexander v. K. C., Ft. Smith & Memphis Company, 138 Mo. 464, 40 S. W. 104, the right of way had been purchased from Simpson: "The defendant company acquired a right of way of Simpson, and entered and built its road; but Simpson never perfected his title to the homestead, and never obtained his patent, but abandoned the land. according to the weight of the evidence, some time in 1882, after the com

pany had built its railroad and was operating it as a part of a great interstate system between Kansas City and Birmingham, Ala. The map showed that the railroad was located over the land in controversy, and plaintiff had been on the land, employed and aided in building defendants' railroad thereon. He, of all men, could not be ignorant of the location of the road and the claim of defendant. After Simpson's homestead entry was canceled in March, 1884, this plaintiff made a homestead entry of this land with full knowledge of the construction and operation of the railroad thereon."

The case of Kinion v. K. C., F. S. & M. R. R. Co., 118 Mo. 577, 24 S. W. 636, is not applicable to the case at bar, for the reason that the court expressly found that: "* * It is an undisputed fact that plaintiff knew the road had been located across this land, the right of way acquired, and the work of the construction of the road commenced, when he made his homestead entry. He therefore made his entry subject to all of the rights of the company."

In the case of Roberts v. Northern Pacific Railroad Company, 158 U. S. 9, 15 Sup. Ct. 756, 39 L. Ed. 873, the company acquired title by purchase, and expended large sums of money upon the land. The court held: "The railroad company having acquired title from the owner, a subsequent purchaser from the owner, long after the company had entered upon visible and notorious possession under a valid contract, for a valuable consideration, could not maintain either trespass or ejectment; nor would he, as such purchaser, be entitled to recover damages for the occupation of the land, because, under the present claim, the benefit would go to a private party who bought with the knowledge of the county's previous sale, and who admits that he secured his own grant for a grossly inadequate consideration because of the fact of such previous sale."

A careful examination of the authorities cited discloses material and controlling facts in each case which do not exist in the case at bar. As the successful contestant, Kephart, secured a preference right to the land, and his admitted compliance with all the requirements of the law to preserve that right, precludes the company from taking its right of way under the act of 1875, and it must now respond in damages to the plaintiff.

For the reasons above stated, the judgment of the district court will therefore be affirmed.

HAINER and IRWIN, JJ., concurring. GILLETTE, J., having tried the case below, not sitting. BURFORD, C. J., and BURWELL and PANCOAST, JJ., dissenting.

(36 Mont. 39)

RUMPING v. RUMPING. (Supreme Court of Montana. Oct. 21, 1907.) 1. APPEAL-REVIEW-WANT OF JURISDICTION IN TRIAL COURT.

The objection that a complaint does not allege a fact essential to confer jurisdiction may be urged for the first time on appeal. 2. DIVORCE-JUDICIAL REMEDY-STATUTES. The power of courts to grant a divorce is statutory.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, § 1.]

3. SAME JURISDICTION - RESIDENCE PLAINTIFF.

OF

Where the Legislature declares that a divorce must not be granted unless plaintiff has been a resident of the state for a specified time next preceding the commencement of the action, the trial court must inquire into the jurisdictional facts, and be governed accordingly. 4. SAME-PLEADING.

Under Civ. Code, § 176, providing that a divorce must not be granted unless plaintiff has been a resident of the state for one year next preceding the commencement of the action, the fact of plaintiff's residence is jurisdictional, and must be alleged in the complaint.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 17, Divorce, § 287.]

Appeal from District Court, Yellowstone County; Sydney Fox, Judge.

Suit by John H. Rumping against Eva Rumping. From a decree for plaintiff, defendant appeals. Reversed and remanded.

Edward Horsky, for appellant. O. F. Goddard, for respondent.

SMITH, J. This is an action for divorce, appealed from the district court of Yellowstone county. The cause of action is based on the alleged desertion of the plaintiff by the defendant. The complaint fails to allege that the plaintiff has been a resident of this state for one year next preceding the commencement of the action, as required by section 176 of the Civil Code. The only pleading on the part of the defendant is an answer, in which she denies generally all of the allegations of the complaint, except those of marriage and birth of issue. The defendant failed to appear at the trial. Evidence was offered by the plaintiff, whereupon the court found all of the allegations of the complaint to be true and entered a decree dissolving the marriage. Defendant appeals.

The cause was presented to this court without argument, and we have received no assistance from the briefs of counsel; the ap pellant submitting the bald statement that the judgment should be reversed. and the respondent contending that it should be affirmed. The question involved is a new one in this jurisdiction, and not as easy of decision as the failure of counsel to examine the same would seem to indicate. It is also an interesting one from a lawyer's standpoint. Section 176 of the Civil Code, supra, reads as follows: "A divorce must not be granted unless the plaintiff has been a resident of the state for one year next preceding the com91 P.-67

mencement of the action." If the allegation of plaintiff's residence is jurisdictional in its nature, the objection can, of course, be urged for the first time in this court. Our research has discovered the case of Dutcher v. Dutcher, 39 Wis. 651, which appears to be authority for the action of the trial court in holding that the pleadings do not raise the issue of plaintiff's residence. The opinion is by Chief Justice Ryan, and for that reason is entitled to the respectful consideration of courts, and, viewed in the light of the rules of both common-law and Code pleading, seems unanswerable on that point. The divorce statute of Wisconsin at the time read as follows: "No divorce shall be granted unless the petitioner or plaintiff shall have resided in this state one year immediately preceding the time of exhibiting the petition or complaint," etc. Rev. St. Wis. 1858, c. 111, § 12. The court said: "But the question remains whether the pleadings raise the issue of her [plaintiff's] residence. Her want of residence under the statute is clearly a personal disability, not affecting the present right of action, but only the present right to prosecute the action, a disability which might be cured; clearly matter of abatement, not of bar." Story's Equity Pleading, § 708, is then quoted as follows: "All declinatory and dilatory pleas in equity are properly pleas, if not in abatement, at least in the nature of pleas in abatement, and therefore, in general, the objections founded thereon must be taken ante litem contestatam by plea, and are not available by way of answer, or at the hearing." And 1 Chitty's Pleading, 446, as follows: "Whenever the subject-matter of the defense is that the plaintiff cannot maintain any action, at any time, whether present or future, in respect of the supposed cause of action, it may and usually must be pleaded in bar; but matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should in general be pleaded in abatement." The court then proceeds: "So Lord Redesdale distinguishes pleas 'that the plaintiff is not entitled to sue by reason of some personal disability,' and that 'the plaintiff has no interest in the subject, or no right to institute a suit concerning it,' from pleas in bar, and calls them pleas to the person of the plaintiff. And the distinction is not one of form merely, but of substance; for generally judgment for the defendant on pleas in abatement abates the action only, on plea in bar, bars the cause of action everywhere and forever. In the present case judgment against the respondent for want of residence within the statute should not operate to bar another action here, if she should have acquired a residence, or else where, at any time or under any circumstances. *** If certain matters in abatement are apparent in the complaint, they are ground for demurrer under the Code. But if matter in abatement, not apparent in the complaint,

*

be relied on as a defense, it must be specially pleaded in the answer. A general denial is a plea in bar, not broader at least than the general issue at common law, and cannot raise any defense by way of abatement. Judgment for the defendant upon a general denial is a general judgment-a bar to all future actions for the same cause. And it would be a cruel abuse that it should go upon a defense in abatement concealed in gremio. The Code intended no such perversion of justice. And it is well settled in this court that matter in abatement, not apparent in the complaint, must, like other special defenses. be specially pleaded in the answer.

*

The appellant contends that the defense here is in the nature of a plea to the jurisdiction. We do not think so, but need not discuss the point: for, by all the authorities, the rule equally applies to pleas to the jurisdiction, which, if not strictly pleas in abatement, are in the nature of pleas in abatement. * * * The defense, therefore, that the respondent was not a resident of the state, though well founded in fact, was inadmissible under the pleadings in this case." However, notwithstanding the foregoing conclusion, the court reversed the judgment on grounds of public policy, saying, among other things: "It concerns the public welfare that the state should not be made a free mart of divorce for strangers, and that, amongst her own people, divorce should not become matter of free will as much as marriage-a personal right independent of public right and inconsistent with public welfare. Divorces without the letter and spirit of the statute in fact, but made to look within it by design or mistake or accident, are frauds upon the statute and offenses against public policy. And it is the duty of the courts ex officio to look closely into actions for divorce, and to direct inquiries into the facts, when necessary, and finally to deny all divorces which would be abuses of the statute." If we found it requisite, in order to protect the interests of the state, to reverse this case on grounds of public policy, it would not be necessary to go beyond the decision of this court in the case of Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6. where the subject is reviewed very thoroughly in an opinion by the present Chief Justice.

There is, however, in the books another line of cases, which hold that a failure to allege and prove the residence of the plaintiff within the statute renders the decree a mere nullity, for the reason that the court has no power to grant a divorce unless this provision of the statute is complied with. We are inclined to think this the better and more satis factory line of authorities upon which to rest our judgment, and to hold that statutes such as ours were designed to and do abrogate any rule of pleading in conflict with the statutory prohibition. It is elementary, of course, that neither courts of law or equity have any inherent power to dissolve mar riage. The power to decrce a diverce is pure

ly statutory. Irwin v. Irwin, Okl. 186, 41 Pac. 369. When. therefore, the Legislature, in conferring upon courts the jurisdiction to grant divorces, says, in the same statute, that a diveree must not be granted unless the plaintiff has been a resident of the state for one year next preceding the commencement of the action, we believe it meant just what it said, and that trial courts, as Chief Justice Ryan remarked, should ex officio inquire into the jurisdictional facts, and be governed accordingly. In Gredler v. Gredier. 36 Fla. 372, 18 South. 762, the court said: "The complainant had wholly failed to allege in his bill, or to prove, that he had resided in this state for two years prior to the exhibition of his bill. The fact of the applicant's prior residence for two years in this state was necessary both to be alleged in the bill and established by proof, before the courts were authorized to grant a divorce under our statute." The Supreme Court of California, in Bennett v. Bennett, 28 Cal. 660, used this language: "But over and beyond this, residence is palpably within the mischiefs against which it was the object of the statute to guard, and therefore it must be proved. proved. Should the judgment in this case be affirmed, the affirmance would be but a letter of invitation to the married, domiciled abroad, who have, with or without reason, became emulous of divorce, to take a trip, one or both, to this state for the purpose of avoiding delays, or yet more serious impediments at home, with the intention to return thereto as soon as the purpose of their coming shall have been hurried to accomplishment by the aid of an accommodation answer admitting the averment of a six months' residence on the part of the applicant. Against this prostitution of the judicial power, the statute interposes the only available barrier by requir

we construe it, not only that the causes of divorce should be proved to the court, but the residence of the applicant also, as the sole ground on which it can take cognizance of the question." In Powell v. Powell, 53 Ind. 513, it was held that, where the residence of the petitioner was not proved as required by the statute, the court had no power to decree a divorce. Under a statute very similar in its phraseology to our own, the Supreme Court of Minnesota held, in Thelen v. Thelen, 75 Minn. 433, 78 N. W. 108, that the 1 of the plaintiff's residence was jurisdictional, and must be alleged in the complaint. In Luce v. Luce, 15 Wash. 608, 47 Pac. 21, the plaintiff was unable to prove his residence for the statutory period of time, and the court held that he had failed to prove a fact necessary to entitle him to any relief. The Supreme Court of Texas, in Haymond v. Haymond, 74 Tex. 414. 12 S. W. 90, said: "When the facts required to exist by our statutes are not established by the evidence, a decree of divorce should be refused." See also. Perce v. Pearce, 132 Ala. 221, 81 South. 85, 90 Am. St. Rep. 901;

of all the evidence that the note has not been paid, it will be your duty to find a verdict for the plaintiff in the sum of $2,000, with interest thereon from the 11th day of January, 1905. If, on the other hand, you believe from a perponderance of the evidence that the said note has been paid by the defendants to the plaintiff, it will then be your duty to find for the defendants. (4) The gist of this action is the question whether or not, on or about the 3d day of March, 1905, the plaintiff entered into an agreement with the defendant M. B. Darrow that the promissory note for $2,000, on which this action is based, should be included in the agreement made between N. M. McCauley and the defendants on that date, and should be satisfied by the conveyance to the said N. M. McCauley of an undivided one-half interest in the residence situated at the corner of Main street and Eighth avenue, in Lewistown, Mont. If you believe from a preponderance of all the evidence that this note was included in the said agreement, and was to be satisfied by the said . conveyance, then it is your duty to find for the defendants in this action. If on the other hand, you believe from a preponderance of the evidence that the said note was not included in the said agreement, and was not satisfied by the said conveyance, then it is your duty to find for the plaintiff."

It is argued that, while it was necessary for the plaintiff to make the allegation of nonpayment in order to show a breach of the contract, it was not incumbent upon her to prove this negative averment, but that the burden of pleading and proving payment rested upon the defendants. The complaint is that these instructions are erroneous, in that they cast the burden of proving nonpayment upon the plaintiff. Counsel support their contention by reference to several cases which discuss the question whether it is incumbent upon the plaintiff to allege in his pleading the fact of nonpayment and sustain it by proof at the trial, or whether the defendant must plead payment as a special defense and sustain the burden of proving it. We shall not venture upon an examination of this question. Under the view we take of the case, it is not necessary, for, assuming that plaintiff's contention is sustained by the weight of authority, we think the court clearly and distinctly cast the burden of proof upon the defendants. Whether they sustained it is a question not before us, for the reason that no complaint is made that the evidence was not sufficient to justify the verdict.

The instructions quoted state correct abstract propositions of law, for, if it ap peared by a preponderance of the evidence that payment had not been made, the plaintiff was entitled to recover. On the contrary, if it appeared in the same way that payment had been made, the defendants were entitled to a verdict. If the charge had stated nothing further, the jury might possibly have in

ferred that the averment of nonpayment in the complaint must have been established by a preponderance of the evidence, and that in case of an equipoise on this issue the defendants should recover. But in instructions 7 and 8 the court distinctly told the jury that the only issue in the case was whether the note had been included in the settlement of March 3, 1905, and thus discharged, and that the burden was upon the defendants to establish this fact by a preponderance of the evidence; otherwise they should find a verdict for the plaintiff. And in the ninth instruction the jury were further told that plaintiff's possession of the promissory note sued on was to be considered by them as prima facie evidence that it had not been paid. In view of this condition of the instructions, and in view of the further fact that the verdict was for the defendants, we do not think that the jury was misled by instructions 3 and 4, either because of the form of the statement therein, or because the court omitted to state what the jury should do in case they found the evidence to be evenly balanced on the issue of payment.

During the course of the trial, the defendants introduced evidence tending to show the value of the property in Lewistown; the purpose being to furnish foundation for an inference that the claim of the defendants that the settlement by which this property was conveyed to McCauley, in consideration of the cancellation of all the claims held by McCauley and the plaintiff against the defendants, was a reasonable one, under all the circumstances. Upon the effect that they should give to this evidence, the court instructed the jury as follows: "This testimony has been admitted, and should be considered by you, only so far as it relates to the reasonableness or unreasonableness of the agreement alleged by the defendants to have been entered into by and between them and the plaintiff on or about the 3d day of March, 1905." Instruction No. 6. It is argued that this instruction is erroneous in thus limiting the effect of this evidence. is said that, if it appeared from this evidence and that offered in rebuttal on the same subject by the plaintiff, that the value of this property was not equal to the full amount of all the notes with interest, but was sufficient to pay them in part only, the court should have instructed the jury to find a verdict for such part of the amount of the note in suit as was not paid by the conveyance of the property. In this contention there is no merit. The contention of the defendants was that the note was fully paid off and discharged by the conveyance; it having been so agreed by the parties at the time. There was no middle ground, or any reason for consideration of the question whether there was any agreement that the conveyance should operate as a partial payment. There was no such issue made by the pleadings.

Finding no prejudicial error in the record,