Call v. Coiner

207 P. 1076 | Idaho | 1922

DUNN, J.

On May 11, 1905, Alma S. Barnett made a desert land entry at the Hailey land office which, after survey, was conformed to the official survey and embraced, with other lands, lot 3, section 5, township 17 north, range 25 E., B. M., which entry passed to patent October 30,- 1916. On February 2, 1917, appellant took title to this lot with the other land covered by the patent by deed from Barnett, and said patent was recorded in the office of the recorder of Lemhi county on February 26, 1917. On January 12, 1912, respondent made application in said land office under the forest homestead law for a tract of land for which he afterward received final certificate erroneously embracing a portion of said lot three. It appears from the evidence that the land in controversy, amounting to about two and one-half acres, was reclaimed by respondent and was seeded to hay and the crops removed therefrom by him up to and including the year 1918. Both appellant and respondent appear to have been aware, during the years 1917 and 1918, of the conflict between these two entries but not to have known exactly where the line would run separating the patented land from that claimed by respondent. While appellant claimed the land in controversy and in fact was the owner of it during the years 1917 and 1918, respondent’s occupation and use of it during those years appears to have been with the tacit consent of appellant. Whatever labor or expense was incurred in the growing and harvesting of the hay was provided by the respondent. In this situation if appellant is entitled to compensation from respondent, which we do not decide, he can recover only the reasonable rental value of the land during those years. In this action he is suing for the full value of the crops grown upon said lands during said years, and this he is not entitled to recover. The verdict of the jury was correct. The judgment is therefore affirmed, with costs to respondent.

Rice, O. J., and Budge, McCarthy and Lee, JJ., concur.