54 Iowa 41 | Iowa | 1880
I. The cause was tried, as shown, by the referee’s report, on the 16th day of April, 1878, before chapter 145, of the laws of 1878, took effect, and is governed by the provisions of section 2742 of the Code. It does not appear that any motion'was made for trial upon written evidence, and hence the cause. is not triable here de novo, but must be reviewed as an action at law, on errors duly assigned. The findings of fact stand as the verdict of a jury, and cannot be disturbed unless ’clearly unsupported by the evidence. The report of the referee as to the facts is not so wanting in support.
The report of the referee and the judgment of the court do not charge the plaintiff with the damage to the mill. In
(V.) What we have said indicates our general view of the manner in which the plaintiff should account for the use of the premises in question. The facts are not sufficiently presented by the report of the referee to enable us to enter a final judgment in harmony with the law, as we regard it, applicable to the case. The referee has found the rental value of the mill to be worth $1,200, but has not determined which party, under this estimate, shall make repairs. This •is a very important matter, and the evidence upon this question is conflicting. Further, the referee has found the rental value of the mill simply, and not of the land which was in plaintiff’s possession.* The cause must be remanded to the court below for a specific finding of the following facts: Fwst. The rental value per year of the mill, and the other real estate in the possession of plaintiff, the plaintiff making ordinary repairs. Second. The amount of repairs other than ordinary made by the plaintiff each year, and not occasioned by liis failure to exercise reasonable care of the property. The account will be stated as follows: The plaintiff will be charged with the annual rental value of'the .property for each year, less taxes paid during Jjhe year, and less the value of extraordinary improvements^made each year, not occasioned by the plaintiff’s failure to exercise reasonable care of the premises. Upon the amount of each year’s rent so ascertained, from the end of each year to the date of final adjustment, interest will be charged to the jdaintiff at the rate of six per cent. The plaintiff will also be charged with
No facts appear in this case which justify the depriving of the defendant of the possession of his property, and of
Reversed.