The appellant filed August 13, 1890, his complaint in the court below, and alleged “ that on the second day of April, A. D. 1885, the said plaintiff became, and ever since said date has been, and now is, the owner and seised in fee, and entitled to the possession of all that certain lot of land [description]; that while the plaintiff was such owner, and so seised and possessed, and entitled to the possession of said land and premises, the defendant did, on the day and year aforesaid, wrongfully and unlawfully enter into and upon the following part and portion of said lot of land, viz. [description], and did oust and eject the plaintiff therefrom, and ever since that day wrongfully and unlawfully withheld, and still and now wrongfully and unlawfully does withhold, the possession thereof from the plaintiff, to his wrong, injury, and damage in the sum of one thousand dollars; that the value of the rents and profits of the said land and premises is two hundred dollars per month; and that by reason of the unlawful withholding of the said land by the defendant, as aforesaid, plaintiff has been deprived of said rents during all the time since the second day of April, A. D. 1885, and by the continuance thereof will be deprived of the use and occupation of the same to his loss and damage in the sum of two thousand dollars.” The prayer is for “the restitution of said land and premises,” and damages.
The demurrer of the defendant is as follows: “ That the said complaint does not state facts sufficient to constitute a cause of action, in this: That it appears from the face of the complaint that the defendant has been in possession of the property described in the plaintiff’s (complaint) for more than five years prior to the commencement of the plaintiff’s action, and that said action is barred by sections 29 and 30, title 3, chapter 2, *120Compiled Statutes of Montana, and that the defendant claims the benefit of the same.”
The demurrer was sustained by the court, and upon the refusal of the plaintiff to file an amended complaint, judgment was entered for the defendant for his costs.
The sections of the Code of Civil Procedure which are mentioned in the demurrer read as follows: “ Sec. 29. No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the property in question within five years before the commencement of the action. Sec. 30. No cause of action or defense to an action, arising out of the title to real property, or to rents or profits out of the same, can be effectual unless it appear that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted, or the defense is made, or the ancestor, predecessor, or grantor of such person, was seised or possessed of the premises in question within five years before the commencement of the act in respect to which such action is prosecuted or defense made.”
The briefs of counsel restrict our inquiry to one question, does the complaint show upon its face that the defendant enjoyed the adverse possession of the land in controversy more than five years before the commencement of this action? It is alleged that the plaintiff was, at all the times named in the pleading, “the owner and seised in fee” of the premises. This rule has been prescribed by the Code of Civil Procedure: “ In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof, within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title for five years before the commencement of the action.” (§ 32.) After quoting this statute in Lamme v. Dodson, 4 Mont. 587, Mr. Justice Galbraith said: “The true principle, therefore, is that he who has the legal title to real property is presumed to have the right to the possession thereof until better right is shown.” (See, also, National *121Min. Co. v. Powers, 3 Mont. 344.) By the allegations of the complaint the defendant is a trespasser, and there is not a word which indicates that his acts with reference to .the property are accompanied with any claim which is inconsistent with the title of the plaintiff. The intention of the party, which is a a vital element of an adverse possession to realty, is not shown, and there is nothing to rebut the presumption of the statute, supra, from the ownership in fee. (McDonald v. Fox, 20 Nev. 364, and eases cited; Sharp v. Daugney, 33 Cal. 505; Figg v. Mayo, 39 Cal. 262; Unger v. Mooney, 63 Cal. 586; 49 Am. Rep. 100; Roman Catholic Archbishop v. Shipman, 79 Cal. 288; Harvey v. Tyler, 2 Wall. 328; Probst v. Presbyterian Church, 129 U. S. 182.) The opinions in 'the last two cases were delivered by the learned jurist, Mr. Justice Miller, who said in Harvey v. Tyler, supra: “The third and last instruction given at the instance of plaintiffs had reference to the question of adverse possession, in its relation to the Statute of Limitations. Its purport was that if plaintiffs’ title was found to be the paramount title, and any of the defendants entered upon and took possession of the land, without title or claim, or color of title, that such occupancy was not adverse to the title of plaintiffs, but subservient thereto. We think this law to be too well settled to need argument to sustain it. ... . Where there is no claim of right, the possession cannot be adverse to the true title.” In Probst v. Presbyterian Church, supra, the court approved Harvey v. Tyler, supra, and Ewing v. Burnet, 11 Peters, 41, in which this language is used: “An entry by one man on the land of another is an ouster of the legal possession, arising from the title, or not, according to the intention with which it is done; if made under claim and color of right, it is an ouster; otherwise it is a mere trespass; in legal language, the intention guides the entry and fixes its character.”
It is therefore ordered and adjudged that the judgment be reversed, and that the cause be remanded, with directions to overrule the demurrer.
Reversed.
Harwood, J., and De Witt, J., concur.