The opinion of the court was delivered by
Allen, J. :
Two questions only are urged on our consideration : First. Is the plaintiff entitled to have $12 per month, the value of the use and occupation of the lot with the improvements for the full time the property was occupied by the defendant, set off against the value of the improvements awarded the defendant? Second. Is the amount allowed the defendant for his tax lien excessive?
It is argued that the occupying claimant’s law was not correctly construed by the trial court, and that if such a construction as was given it is proper, then that it is unconstitutional. It is' urged that the allowance to an unsuccessful occupying claimant of lands of the value of his improvements is equitable in its nature, although provided for by statute; that it is and must be governed by equitable principles; that courts of equity before the enactment of any statute lent their aid to mitigate the hardships of the common-law rule, which- gave to the owner of the land all improvements without any compensation to the party placing them there; that courts of equity interfered only so far as to set off the value of the improvements against the plaintiff’s claim for mesne profits, but never rendered a judgment for the excess if the value of the improvements exceeded the mesne profits. Our attention is called to the bill of rights, and especially to §§ 2 and 18. We. find no conflict between the occupying claimant’s law and the bill of rights. The validity of such enactments has been so often and universally upheld by *203the courts everywhere that we do not deem citations of authorities on the point necessary. We think the provisions of the occupying claimant’s law in accordance with sound equitable principles, and that no reason can be found in ethics why the occupying claimant should not have the full value of his improvements, as well when the Aralue exceeds the mesne profits as when it does not. The substance of the plaintiff’s claim is not merely that she is entitled to the value of the use and occupation of her property, the bare lot, which the court finds was $1 per year, and concerning which the plaintiff makes no complaint, but she claims the rental value of the house constructed by the defendant, which in equity and good conscience never was her property at all. The equity, the ethics, of such a claim finds no favor with us. On the contrary, we think the claim grossly inequitable. The defendant’s money paid for the improvements. No allowance could be made for interest on his investment, but he has had the use of it. We know of no sound reason why one should be charged for using his own property, no matter what the form of the action may be. If complaint were made that no allowance was made for the use and occupation of the plaintiff’s lot, exclusive of improvements, the claim would address itself to a court of equity with great force, but no such claim is made. The amount indeed is too trifling to litigate. Although it is claimed that no trial was had on the plaintiff’s second cause of action, which was for rents and profits prior to the commencement of the action, we think the record contains enough to show that the whole matter was tried and determined by the court; but we find no error in the conclusions reached.
As to the plaintiff's second claim, it is urged that *204taxes on the improvements placed on the lot by the defendant were allowed, and that it is certainly unjust that the plaintiff's property should be subjected to an additional burden resulting solely from the act of the defendant, and especially so when the plaintiff is given no benefit whatever by an allowance for rent of such improvements. We are not prepared to' say that the reasoning of counsel on this proposition is erroneous. In the case of Uhl v. Small, 54 Kan. 651" court="Kan." date_filed="1895-01-15" href="https://app.midpage.ai/document/uhl-v-small-7889961?utm_source=webapp" opinion_id="7889961">54 Kas. 651, same case, 39 Pac. Rep. 178, we held that equitable considerations should not be overlooked nor ignored in determining the amount of a tax lien in favor of the holder of an invalid tax title. But counsel concedes that the record does not clearly present the question. In fact, it does not present it at all. There is nothing whatever giving us any light on the question when or on what the taxes were levied. The plaintiff was allowed for the value of the use and occupation of the lot and improvements after suit brought in accordance with the statute. There is nothing tending to show error in the court's computation of the-taxes.
The judgment is affirmed.
All the Justices concurring.