Cooper v. McCormick

10 Wyo. 379 | Wyo. | 1902

Potter, Chiee Justice.

In this case we are called upon to review the action of the District Court of Carbon County in affirming a decision of the State Board of Land Commissioners ordering that a lease of certain school lands be issued to the defendant in error, and refusing to renew the lease of plaintiff in error for said lands. Upon an appeal from the determination of the state board to the District Court, that court affirmed the acton of the board, and-Frank Cooper, the appellant, brings the matter here on error.

The lands affected are located in Carbon County, and described as section 16, in township 19 north, range 78 west. Cooper held a lease of the land, from the State, dated January 17, 1896, and running for the period of five years from January 10. That lease, therefore, expired by limitation January 10, 1901. An application to again lease the same lands was filed with the board by Cooper December 1, 1900, and was accompanied by the affidavit required by the board showing certain particulars concerning the land, its character, the improvements thereon, and an opinion as to its value for rental purposes.

January 15, 1901, John W. McCormick, the defendant in error, also filed a petition applying for a lease of the lands, which was accompanied by his own affidavit. Upon the filing of this petition, it appears, from the records of the board, that on the same date it was considered in connection with Cooper’s application, and it was ordered that both applicants be called upon to file sealed bids for the leasing of the land. In obedience to an order upon the parties to appear at a stated time and offer whatever evidence they desired, the parties appeared at-the time fixed, and testimony was introduced on behalf of the Cooper application. Cooper at the same time applied for leave to amend his petition bv stating therein that it was for a- renewal of the original lease, and that it was based upon the fact that about two hundred acres of the land had been fully irrigated and reclaimed by the lessee before the expiration of his former lease, and that he had constructed suitable ditches and obtained a permanent water right for the full and complete reclamation of the land. On the same date McCormick’s sealed bid filed by him was opened, and it was found that he had placed a value of three dollars per acre on the section, making the annual rental $96. In the application of Cooper the value was placed at $1.25 per acre.

May 11, 1901, the board rendered its decison, and, in addition to the facts already stated, found the following: That said section was leased to Marsh and Cooper — Cooper being the present applicant — in 1891 upon a valuation of $2.50 per acre (that said parties had monopolized the use of said land for nine years prior thereto without paying rent therefor) ; that in 1895 said land was leased to Frank Cooper upon a valuation of $1.25 per acre, made upon the affidavits of F. O. Harrison, as attorney in fact for Cooper, and one E. Percy Palmer; and that the same was a fraud upon the board; that Cooper is a foreigner residing in England, and has never been a resident of Wyoming; that he had failed and refused to present a sealed bid, as ordered by the board; that his application was not based upon any claim of right, as appears on its face; that the claim of right made at the hearing is not such a claim as would give him a right to renewal under Section 815, Rev. Stat., for the reason, first, no valid claim was made under the statute in the application ; second, fraud was practiced on the board in the statement of the value of the land made in the application, and, third, the testimony showed that Cooper had not complied with the requirements of Section 815 in irrigating forty acres in each and “every one hundred and sixty acres of said land,” nor had he “provided suitable ditches for its full and complete reclamation.”

Thereupon the application and bid of McCormick was accepted and a lease ordered issued to him upon satisfactory-proof of his compliance with the requirements of Section 817, Revised Statutes, which required a lessee to pay or tender to the owner of improvements on the land the value thereof. The application of Cooper was rejected. The reasons for the action thus taken are written in the records of the board as follows:

“No right, under the provisions of Section 815, Revised Statutes, having been established by Cooper. Fraud having, been practiced by Cooper in his representations as to the rental value of the land in his application. Cooper being a citizen of a foreign country. (Chap. 71, Ses. Taws 1901.) Cooper refusing to bid, as required by the order of the board. And it appearing to the board that it will inure to the greatest benefit and secure the greatest revenue to the State.”

In the District Court the matter was heard upon the original papers and affidavits, and the evidence adduced before the board. The fact, if it be a fact, that Marsh and Cooper had occupied or monopolized the premises for several years prior to the lease issued to them in 1891, is not decisive of the controversy, and can have no substantial effect upon the respective right of the parties from a legal standpoint. It is not now urged as a valid objection to the renewal of Cooper’s lease; and we apprehend that it was mentioned among the reasons for the action of the board, more by way of moral support of the conclusion reached than as constituting a legal ground therefor. It is not perceived how the fact can have the effect to deprive Cooper of the right claimed after he had leased the land and paid rental therefor under two separate leases of five years each, he having been associated with Marsh in the first lease. Trespass upon state land, by its occupation without lease or certificate of purchase, is made punishable by fine. (R. S., Sec. 838.) But'the statute does-not impose as’a penalty the forfeiture of any right to take a lease of the premises. It is to be said, moreover, that neither the evidence nor the records of the board before.us, outside the findings, show the occupation of the land by said parties for nine years anterior to the lease of 1891, further than the showing in the testimony of the State Engineer that one of the Cooper ditches car1 ried an appropriation of water as made in 1882, and another an appropriation dating from the spring of 1889.

The only evidence upon the question of the alienage of Cooper is found in the testimohy of F. O. Harrison, who, as his attorney in fact, made and filed his application, and who-stated when being examined as a witness that Mr. Cooper was not a citizen of Wyoming; and in a .statement in the ■application of McCormick that Cooper lived in England and was not a citizen of this country. Conceding that enough appeared to establish the fact that Cooper was a non-resident alien, it does not seem to be contended that he is on that account incapable of taking a lease of state lands, nor is any reason pointed out in the brief of counsel for defendant in error why the fact of alienage should control in a determination of his right to renew his lease, other than a reference to the provisions of Section 813, Revised Statutes,, as amended in 1901. That statute provides that the board shall lease all state lands in such manner and to such parties, as shall inure to the greatest benefit and secure the greatest revenue to the State. Provided, that preference shall be given to the applications of those parties who are citizens and taxpayers of the State. (R. S., Sec. 813; Laws 1901,. p. 75, Chap. 71.) It was not intended,, we think, to so provide that in all cases and under all circumstances where there should be more than one application to lease state land, the application of an alien or nomtaxpayer should be-rejected in favor of a citizen or taxpayer, nor is the statute entitled to that technical construction. The preference provided for is evidently to be followed by the board only where other things are equal.

In ordinary cases the board is vested with a wide discretion in the matter of renewing leases. (R. S., Sec. 812.) That discretion is doubtless to be exercised reasonably, rather than arbitrarily, and with a due regard to the 'rights of the lessee, as well as the interest of the State, taking, into consideration all the statutory regulations relating to the leasing of state lands. It is probable, however, that the discretion is such that, except in case of fraud or grave abuse resulting in manifest wrong and injustice, the courts would not feel warranted in interfering with its exercise.

The right claimed by the plaintiff in error is not, based upon the provisions of Section 812, altogether, but it is maintained on his behalf that he is entitled to a renewal of his lease as a matter of absolute right by virtue of his compliance with the provisions of Section 815, Revised Statutes. That section of the statute confers a right of renewal upon a lessee who shall have reclaimed the land leased by him by irrigation. It reads as follows:

“Sec. 815. The power given to the board to refuse to renew, or lease, to sell the state lands at the expiration of a lease, or again, to lease to other parties than to the original lessee, shall not apply in the following case: Whenever the original lessee of the state lands, or his assign, shall have, during the period of his lease or prior thereto, reclaimed the same by irrigation, and shall have provided suitable ditches for its full and complete reclamation, and shall have secured an adequate and perpetual water supply for said land, then in that case the original lessee shall have the right to renew such lease for a term of five years, which renewal may be repeated for the same period five years thereafter, and may again be repeated for the same period ten years thereafter, making a total period not to exceed twenty years. Provided, That each of said renewals shall be dependent upon the continuous irrigation and cultivation of at least forty acres in every one hundred and sixty acres of said land, and in case the lessee shall have failed to cultivate the said land, then said board shall have the authority-to refuse to renew the lease as-provided in this chapter.”

The following section (816) provides that, “All water rights which shall have become appurtenant to the lands leased aforesaid shall, upon the expiration of the leases given to the lessee who made the irrigation and improvements thereto, become the property of the State, and shall not be considered as improvements, which any subsequent lessee .or purchaser thereof shall be obliged to reimburse or pay such original lessee who made such improvements thereon.”

It appears from the testimony adduced at the hearing before the board that through the efforts of Cooper one hundred and sixty acres of the leased tract have been made meadow land, and that two hundred acres have had water thereon by means of irrigation. The irrigaton works consist of dams and two ditches, the latter being named respectively as “Harrison 7 L. Big Field Ditch” and “Harrison No. 6 Ditch.” It was testified that the ditches are suitable and adequate for all the land that can be got under water (with the probable exception of the northwest quarter of the section) ; and that the meadow land had been generally increasing in extent, but that for the last two or three years the lessee had been unable to get any new land under water. It appears also that a permanent water right by means of the irrigation works aforesaid had been secured through a final adjudication of the State Board of Control, based upon the diverson and appropriation of the water and the irrigation thereby of parts of the land in controversy. The water right under the first named ditch is shown to have been allowed for sixty-five acres of land situated in the northeast quarter section of the land; and under the other ditch for eighty acres in the southwest quarter, and sixty acres in the southeast quarter. The aggregate quantity of land connected with the appropriation of water as allowed by the proper state authorities, therefore, amounts to two hundred and five acres.

It seems that a water right had been adjudicated in favor of other parties not interested in this controversy for one hundred acres of land in the northwest quarter section. But it is not-shown that said parties have continued the irrigation of that part of the land, or have been in possession of the land since its lease by the State; nor is it shown that any other party has acquired the water right aforesaid. It is clear, therefore, that the plaintiff in error cannot claim any benefit from the irrigation of said northwest quarter of the land; and the fact that there had been an appropriation of water therefor can have no effect in this controversy, except as tending to show, possibly, that such portion of the land was susceptible of irrigation.

In addition to the irrigation of the land as aforesaid by plaintiff in error, it is shown that he owns two miles of fence on the land running along the west and north sides thereof, and a beef corral located in the northeast quarter.. In his application the-value of the improvements, which we assume to include the dams and ditches, as well as the fences and corral, is stated to be $650. In the McCormick application the value of the improvements, including only the fences and corral, is placed at $100. The map filed as a part of the McCormick application shows one hundred and ten acres of meadow land, in the southwest quarter and northeast quarter of the section, and makes it to appear that, with the exception of eighty acres of pasture in the southwest quarter, the rest of the land is liberally covered with trees and brush. His map does not show or indicate any meadow or irrigated tract in the northwest quarter. The defendant in error did not offer any proof to controvert the fact of irrigation and reclamation, as shown by the evidence submitted on the part of plaintiff in error.

The main question then to be determined is whether the reclamation by irrigation, and the cultivation by Cooper of the quantity of land aforesaid and located, as above stated, is sufficient to entitle him to a renewal of his lease under the provisions of Section 815. And the determination of that question depends upon the proper construction of the statute. The divergence between the views of counsel for the respective parties is very clearly defined. It is contended on behalf of the defendant in error, and in support of the decision of the board, that the statute requires as a condition to the right of renewal' that at least forty''acres' shall be irrigated' and cultivated in ■ every technical quarter section of the land covered by the lease, of, in other words,' that -the term or phrase “in éver-y one hundred' and sixty acres óf said land” refers to and means the largest legal subdivision of a section of land according to1 the United States survey, known technically as a quarter section, which ordinarily consists of one hundred and sixty acres. On the other hand, it is insisted that the statute is not to be so construed,' but that its provisions are complied with, and a right of renewal conferred, whenever the quantity of land irrigated and cultivated equals or exceeds forty acres for every one hundred and sixty acres embraced in the lease, regardless of the location of the irrigated tract, except that it must be located somewhere on the land covered by the lease. It is further contended by counsel for plaintiff in error that, even should the statute be construed as the board have construed it, he would be entitled to a renewal of his lease for the three quarter sections within which the reclaimed land'lies, there being forty acres and more of reclaimed land in each of these quarter sections. Counsel also states that, according to the map in evidence, it appears that a division of the land into four parts of one hundred and sixty acres each by means of parallel lines running from north to south would show at least forty acres of irrigated land in each one hundred and sixty-acre tract so formed.

We do not understand it to be contended that it is necessary for a lessee seeking the benefit of the statute to show that all the land capable of reclamation has been irrigated and cultivated; but it seems to be conceded that the requirement contained in the proviso of the' section for the irrigation of at least forty acres in every one hundred and sixty furnishes a criterion for the determination of the question whether in any case there has occurred such reclamation as to entitle a lessee to a renewal. Although the statute is rather inaptly expressed, we are inclined to the opinion that it discloses an intention to confer the right thereby granted whenever it appears that the quantity of land named in the proviso, viz., at least forty acres in every one hundred and sixty acres, .have been continuously irrigated and cultivated, notwithstanding that a greater body of the land is reasonably susceptible of reclamation.

It must be confessed that the construction of the statute in the respect wherein counsel differ is beset with no little difficulty. Counsel have presented some strong reasons for the construction urged by them respectively. We have reached our conclusion upon a careful scrutiny of the doubtful language employed, in connection' with the context, and the manifest purpose and policy of the statute, as well as the effect upon the lessee under the provisions of Section 816 at the termination of his lease or leases.

It is evident, we think, that the statute should be liberally construed. Its object is the encouragement of the improvement and reclamation of the arid lands belonging to the State through the individual efforts of its lessees by the expenditure of their time and means, the same eventually to accrue to the benefit of the State. The permanent water right that may be'secured by a-lessee is declared to become the property of the State upon the final termination of the leases authorized by the statute, in consideration of the unusual privilege accorded the lessee in such a case. We are of the opinion that an intention appears to deal liberally with a lessee who, by reclamation in the manner required, advances the permanent improvement and value of the land. That intention is made the more manifest by an inspection of the recent enactment of 1901 conferring a similar right of renewal upon a lessee, who shall during the period of his lease construct upon the land leased a reservoir or well, with the necessary pumping and' distributing machinery, for the purpose of watering live stock, and of the value of' two hundred dollars, the additional condition of each renewal in such case being only that the well and reservoir is maintained and used. (Laws 1901, Chap. 82, p. 92.)

Now, it is clear that a lessee might be put to as great an expense in reclaiming and cultivating a large tract of land compactly situated, as if the reclaimed land consisted of several smaller tracts separated from each other and located in different technical quarter sections of the land. Moreover, no fact is better understood in relation to the subject of irrigation in this region of country than that it is practically impossible to conform to section lines or quarter section lines in bringing a tract of land under water and consequent cultivation. That matter is controlled by - the character of the surface of the land. To be successfully irrigated at reasonable expense through individual enterprise the land must lie sufficiently low and level to accommodate the construction of serviceable ditches, and promote the flow of water upon it and its .proper absorption. Much of our land is hilly or rocky in places, and in a particular section of land as described by government survey, the only portion capable of being irrigated and cultivated is very apt to lie in one body. At least, it is safe to say that the case would likely be exceptional where it would be practicable to successfully irrigate and cultivate forty acres in each technical quarter section. The strict construction of the statute insisted upon would require us to say that the Legislature intended to extend the provisions and benefits of the statute to those lands only that are so situated as to permit the irrigaton of a tract comprising forty acres or more in every quarter section; and to deny its application to a section of land not so situated, although a large portion of it could be rendered valuable as improved and irrigated land. The Legislature, no doubt, has the power to so provide. It may limit the application of the privilege as closely as it may see fit; but not having done so in unmistakable language, we conceive it to be the duty of the court to give to the somewhat uncertain expressions as broad and liberal an interpretation as they will admit of, consistent with the spirit, purpose and manifest policy of the statute, and the conditions attending the reclamation of the wild-.and arid lands in this State.

The statute failing to state in specific language that each quarter section must contain the required irrigated tract of forty acres, we should hesitate to conclude that it was so intended, and that the irrigation and cultivation of one hundred and sixty acres in a section of six hundred and forty would he insufficient to entitle a lessee to a renewal; and that the valuable water right obtained for the purpose honestly and in good faith should be forfeited to the State; while another lessee by the comparatively paltry outlay of two hundred dollars in constructing a well or reservoir with appropriate machinery could secure his land for an aggregate period of twenty years.

We cannot agree with the proposition that literally the phrase “in every one hundred and sixty acres of said land” refers only to a technical quarter section. Four contiguous forty-acre tracts described according to legal subdivisions located along one side of a technical section of land constitutes one hundred and sixty acres. We are quite willing to concede, however, that if the phrase should be literally interpreted as if standing alone the statute would require the irrigation and cultivation of at least forty acres in every one hundred and sixty-acre tract, although, in our opinion, each one hundred and sixty-acre tract even then would not necessarily be confined to the largest legal subdivision of a section "known technically as a quarter section. Under that literal construction any division of the land into one hundred and sixty-acre tracts, according to legal subdivisions, would answer the requirement. But we do not think the phrase in question was used literally, nor that it should be construed literally. The Legislature did not, in our judgment, so intend. Such an interpretation would operate to render a statute adopted in pursuance of a wise, broad and beneficient policy, of very limited application, and of little use. When so understood, its benefit to the State would be small, while it would work injustice to individual lessees who have acted upon and complied with its apparent spirit and policy.

The argument for the construction.that. the required irrigation must exist in each technical quarter section seems to assunje that every leased tract,of one hundred and sixty acres, or more will comprise such a quarter section or be divisible into two or more; but we arc npt aware of anything in the law, nor any reason why it may not occur, occasionally, if not frequently, that a tract of one hundred and sixty acres embraced in one lease may be ¡parts of more than one technical quar.ter section, and that a leased tract of six hundred and forty: acres may. be formed by parts taken front several sections, so that .there would not be in the tract four technical quarter sections, without departing in the least from the principle of leasing the land according to legal subdivisions. It is not difficult to perceive, in such instances, the impossibility of applying the strict construction insisted upon by counsel for defendant in error, and apparently followed by the board in this case. Yet we apprehend it would hardly be contended that the statute was intended to be inapplicable to such cases.

It is argued that the object of the law is to secure an increase in the value of all the land, and that the desired result will only be accomplished by a construction of the statute that will require at least forty acres located in each technical quarter of a section to be irrigated and cultivated; and that otherwise a section may be broken into several.parts, so that in the future the State would be able to lease only the particular portion reclaimed and prevented from leasing the remainder. Were our conditons different, and the character and situation of lands in the State different, there might be much, force in this argument. But we think the danger suggested as likely to follow from a liberal construction more imaginary than real. We believe that.it is within the common experience in this region that an entire section of land acquires an enhanced value in consequence of the reclamation and cultivation of a part of. it. Homeseekers here usually require grazing' lands in connection with irrigable lands, and it is to be seriously doubted if the State will ever be.found limited to the leasing of an irrigated portion only- of a section of land which .may have been subject h> the provisions of this statute, however construed. Should .such a thing happen, ■ it is not perceived how' the interest of the State would suffer, as the rental could be fixed upon a valuation commensurate with the quality and. condition of the land' sought to be leased'.'' In any event, the State will eventually come into control, of the same quantity of cultivated land, and an adequate water supply therefor, whether the same be located in one' large body or be separated into smaller tracts located in different quarter sections.

We are constrained to hold that the expression “in -every one hundred and sixty acres of said land,” as employed in Section 815 refers to quantity rather than to a technical quarter section, or to any particular tract or body ■of land. That construction we conceive to be more in harmony with the spirit and policy of the statute, and with the conditions attending the reclamation of land by irrigation in this State. In that sense we think the language was used, and only by such an interpretation, in our judgment, will the intention of the Legislature be carried out.

We are unable to agree with the conclusion of the board that the statement of the value of the land in the application of Cooper amounted to a fraud upon the board. Outside the two applications and the affidavits accompanying them, there was no evidence on this point, other than the fact'that a former lease to .Marsh and Cooper was issued upon the basis of a higher valuation. This fact must have been known to the board when the lease to Cooper in 1896 was granted, and notwithstanding that fact, the lease was granted to Cooper upon the valuation of $1.25 per acre. The affidavit submitted in connection with the last Cooper application is that of a third party, while McCormick’s own affidavit accompanied his application. It seems unreasonable to hold that because one applicant fixes a higher valuation than another, the latter is guilty of fraud. The matter rests largely in opinion, and both may be entirety honest in their statements. The 'Cooper application did not conceal anything respecting the character and condition of the land. It seems to have correctly shown, by the answers to the printed inquiries embodied in the blank application prepared by the board, and by the map attached thereto, the irrigation and improved situation of the premises.

But the statement as to value in the Cooper application may have been made upon the basis of the natural and unimproved condition of the land, while McCormick may have taken into consideration the fact that a part of the land has been reclaimed, and that if he should get the land he would obtain the benefit of the water rights. We are inclined to think that Cooper had a right to place the value upon the land that it had or would have had in the absence of the reclamation caused by his efforts. In any event, we are convinced that the circumstance that his opinion as to value differed from that given by the other applicant is not sufficient to convict him of fraud, there being no concealment or misrepresentation of material facts.

Another reason assigned for the rejection of the application of plaintiff in error is that it did not purport on its face to be an application for renewal under the provisions of Section 815. It is true that it did not appear by the application as originally filed that a right was claimed under the section of the statute aforesaid; but at the hearing and before the board acted an offer was made to amend the application so as to show the facts, and the board was then fully informed that a right of renewal pursuant to the statute was claimed, and that a renewal was desired. McCormick knew when he filed his application that the other applicant was the lessee, and had caused the land to be irrigated and improved. The section of the statute conferring the right to renew in-cases of reclamation does not expressly impose as a condition that an application under its provisions shall be made within any stated time, and it is to be seriously questioned whether the provision as to the time for making an .application for a renewal under Section 812 applies. Cooper, however, was known to the board as the present lessee. He applied to again lease the land; and the board was informed of that desire within the time fixed by Section 812, although the application did not in -terms state that it was for the renewal of a lease already held by the applicant. Unless a most technical construction should be given to the requirement of the statute that the board shall be notified of the desire of a lessee to renew his lease, an application by a lessee to again lease would seem to operate as such a notification, and as a substantial compliance with the statute. Possibly the board ought not to be required in every case to investigate the matter to ascertain whether the applicant already holds a lease, and should they act in ignorance of that fact on account of the silence of the lessee, the fault might be his, but it is evident that the most casual examination of the records would ordinarily disclose the fact. In this case, however, the McCormick application recognized Cooper as the lessee, and in both applications he was referred to as the owner of the improvements. It would manifestly be better practice for one desiring to renew a lease to make that fact distinctly to appear, but we are not prepared to say that to obtain the benefit of the provisions of Section 815, even if the requirement of Section 812 should be considered applicable, it is absolutely essential that the desire to renew, and the facts upon which the claim of right is based, should be clearly stated in the application, where such desire and the facts are made to appear prior to action on the part of the board. The board in this case was not misled into ordering a lease to McCormick by the omission from Cooper’s application of a specific statement that he desired a renewal of his former lease, and claimed a right thereto by reason of his reclamation of the land, and we do not think his claim should be rejected on that ground.

An appeal is allowed by statute from the determination of the State Board of Land Commissioners rendered in any contest proceeding. (R. S., Sec. 843.) This proceeding before the board amounted to a contest. The two parties were applying for the same land. One claimed a right to have a renewal of his lease, and the other was evidently insisting that a lease should be awarded .him on the ground of his higher bid. The board had adopted certain rules of practice' in. contest cases requiring .that the contestant should file a complaint or petition, and the contestee an answer; and where the .latter contains new matter, a reply is provided for. The time for filing such pleadings is specified, and when the matter is at issue the rules provide for setting the contest for hearing. Counsel for defendant in error advert to the absence of pleadings herein, and the non-compliance with the rules of. the board in that respect. It is conceded that it is doubtful if the question can be raised for the first time in this court. We think it is apparent that it cannot be. By the action of the parties and the board a compliance with the rules was waived. A hearing was,had and a decision rendered without objection on the ground of a disregard of the rules, and there does not seem to have been a suggestion on the part of anyone that the hearing was not regularly and properly held. It is not perceived how defendant in error can now complain.

The Board of Land Commissioners is vested with .very important powers, and in the exercise of- those powers much is wisely and necessarily left to their sound discretion. We are satisfied that the board has intended as between these parties to act fairly in maintaining the law upon the subject as they understood it. The error in their decision resulted from what we are led to-regard as too technical and literal a construction of certain language employed in the statute.

We conclude that the plaintiff in error is entitled to a renewal of his lease. The judgment of the District Court must, therefore, be reversed; and that court will be directed to vacate its judgment and enter an order reversing the determination of the board, and ordering the granting and execution of a lease to plaintiff in error in renewal of his former lease, -in accordance with the requirements of Section 815 of the Revised Statutes.

We understand that another case is pending in this court involving the question whether in case of renewal under Section 815 the board may increase the valuation of the land, for the purpose of fixing the rental upon the renewal, basing such increase upon the-natural and unimproved condition of the land only, or whether' the renewal in all cases is required to be allowed at the original rental. That question, therefore, is not considered or decided in this case.

Reversed.

■Corn, J., and Knight, J., concur.