277 N.W. 715 | Iowa | 1938
Rasmus Hemerson, defendant to cross-petition, owned two separate tracts of land in Humboldt County. Upon this land plaintiff held an unforeclosed mortgage. From one of the tracts Humboldt County excavated gravel, compensating Hemerson therefor. Plaintiff, as mortgagee, brought this action against the county, alleging that he had been damaged because the excavation of the gravel by the county had injured the security of his mortgage. There was a trial, resulting in a verdict and judgment for plaintiff, from which he has appealed.
The only question presented is whether the trial court ruled correctly as to the measure of plaintiff's damages. The jury was instructed, in substance, that plaintiff could recover, as damages *842 to his security, such amount as would be the difference in value of the tract in question immediately before and immediately after the gravel was taken, as the result of the gravel being excavated, and that in determining this question of difference in value of the tract the jury should take into consideration the amount of gravel removed, its value, and the real character of the land, its surroundings, its adaptability to any special use or purpose, and other generalizations that need not be set out.
The objection urged by plaintiff is that the trial court should have instructed the jury that the measure of damages was the market value of the gravel that was excavated by defendant at the time of its excavation and removal from the land. But in view of the fact that plaintiff was not suing as one having the rights of an owner of the land, but rather as a mere lienholder seeking to recover on account of alleged impairment to the security he had, we are unable to approve plaintiff's contention. In Mathews v. Silsby Bros.,
"Two rules long established exist in this country. In those jurisdictions in which the mortgagee is deemed to be the holder of the legal title, whether in possession of the real property or not, he may maintain an action against a third party for damages to the mortgaged premises. In other jurisdictions, in which the mortgagee is considered as having a mere lien upon *843 the property, as in this state, the mortgagor retaining possession, he cannot maintain an action for trespass, quareclausum fregit, but may sue for injury to his security."
Quite in same manner as in the cited case the substance of plaintiff's contention in the instant case is that he is entitled to recover as for conversion of the gravel, but for the same reasons that are set out in the Silsby case he was not a party entitled to that remedy. The principle followed in the Silsby case has been followed in Kulp v. Trustees Iowa College,
STIGER, C.J., and HAMILTON, SAGER, DONEGAN, KINTZINGER, and ANDERSON, JJ., concur. *844