Dumas v. Ropp
558 P.2d 632
Idaho
1977
Check Treatment

*1 Dumas, hus and Shannon DUMAS I. Ronald Piaintiffs-Appellants, wife, band Ken heir ROPP, sole widow and

Mary al., Defendants- Ropp, et neth Respondents.

No. Idaho. 5, 1977.

Jan. Featherston, Sandpoint, for P.

Daniel plaintiffs-appellants. of, La-& Cooke

Nicholas M. Lamanna McCabe, River, manna, Paul D. Priest defendants-respondents. d’Alene, for Coeur McFADDEN, Chief Justice. by plaintiffs- instituted This action was and Shannon I. Dumas appellants Ronald Ropp (wid- wife, Mary Dumas, against Ropp, de- Kenneth and sole heir of ow wife, Dia- Akre and ceased), Rueben Corporation mond International filed ants-respondents. The action tres- damages for a 22, 1975, seeking July On pass which occurred grounds dismissed on the statute against the 5-218) run (I.C. had ap- ruling this tiffs-appellants, from which *2 complaint should not Although method peal perfected. for a claim un be dismissed failure to state applicability of as to the by the issue which plain less it doubt that the was raised was tiffs no set of facts which would unorthodox, make appellants entitle Martin Wackerli relief. appeal. on this issued of it dale, (1960); 82 Idaho appellants allege complaint the In their Co., Arrington Stewart Construction land ad- quarter section owned Idaho P.2d by respon- joining quarter owned section Appellants’ complaint basically allege that the Ropp. They dent further 6-202, couched in language I.C. § knowledge or respondents jointly, without ** * damages an action for consent, “did trespass, as follows: maliciously, wrongfully, wilfully, and * * * upon of the lawfully enter “Any person cuts who down cut, plaintiffs” girdle, and that “did underwood, or carries off wood or destroy and take trees otherwise injure, tree, timber, otherwise girdles plaintiffs. and timber on the land injures any tree the land of ' * * * * * Appellants allege damages for *.” person another is liable to the * * * timber re- reasonable value land for owner such treble moved, damages the cost of further for of damages the amount cleaning up restoring and the natural action assessed therefor a civil ” * ** by respondents dition of land caused property and destroying defacing and Nevertheless, appellants in their “leaving mess.” then al- The allege part damages that “All or of these lege part damages “All or of these that: “leaving [taking of trees and timber and profits mesne for which the constitute profits mesne for which mess”] plaintiffs to recover herein are entitled plaintiffs to recover herein are entitled from the defendants.” from the defendants.” willful, “by intentional reason of the term, profits” “mesne means trespass and upon unlawful profits: is, profits “intermediate defendants, are, by pursuant to [they] accruing been between two Idaho entitled to treble the Code given * * periods.” Dictionary, Blacks Law damages *.” ed., Rev. 4th 1968. is most profits Mesne court, The trial in its order granting re often defined of the use or oc value spondents’ motion judgment, held that cupation the time it during of the land provisions action was by barred wrongful possession held and is rejected I.C. 5-218.1 appel The court § commonly of rents measured in terms lants’ contention that the action was one profits. Seventer, 355 See Stokes v. Van profits,” for “mesne gov which would be (Alaska Green, Stein v. 1960); provisions 5-215,2 erned of I.C. § Ill.2d (1955); 128 N.E.2d 743 Sabour year six statute. On this it is the Woish, in v. 117 Vt. A.2d appellants’ position that the trial court erred in ruling an erroneous In an concept profits, meaning of the term “mesne plaintiff may (cid:127)the profits.” profits recover three erty. pass, I.C. (2) (1) years An action for [*] * * trover, 5-218. [*] [*] ”* replevin, “Statutory upon liabilities, fraud. —Within real prop- tres property.” years. I.C. 2. An action for 1. ** [*] § profits 5-215. i of real “Action on property. —Within or for real six BIST- DONALDSON, BAKES and also all of the land LINE, JJ., concur. sustained possession turbance BAKES, specially: concurring Justice, 149 Ala. Henry v. ant. See this com- majority I agree with Bostwick, 153 Kester v. So. *3 un- dismissed plaint properly be could not 437, The value (1943). So.2d 201 Fla. 15 rer for the additional 12(b)(6) a motion is cut and removed recoverable of timber Rules of Civil that under the Idaho An- supra; damages. Henry v. of the Procedure 142, Ky. glin Pennington, et v. al. be ordinarily consid- limitations should not Devel- (1943); Neal v. Farm S.W.2d 277 responsive the pleading to ered before a (La.App. Corp., 42 opment So.2d Motions to dismiss complaint is filed. Therefore, are 1949). although question initial 12(b) go der to the I.R.C.P. that imprecise in statement whether, variety procedural a of or allegedly sustained the reasons, jurisdictional may the con- court profits, the value “constitute” case, prima is a sider the or whether there damages in may be recoverable not do to be considered. facie profits. an action for mer- permit factfinding regard to with is An they do its or a of a claim See closely ejectment. an action in tied to party contemplate requiring to devel- not 198, Ed.; 21st Blackstone’s Commentaries of a the merits op facts in to order Smith, N.W.2d Martin 214 Minn. v. contrary, I.R. On the or defense. claim such, necessarily As it must affirmative defens- 8(c) that C.P. there remedy only as a where be available es, of the statute including the defense dispossession of the been an ouster or has to limitations, pleaded in answer must be an plaintiff, prerequisite ac as this is a to the defend- complaint. is That v. ejectment. Long Godfrey, tion See proving the facts ant has the burden 198 Ga. 32 S.E.2d 306 Win any affirmative defense support of Birch, ters 169 Okl. action, plaintiff should and the bars (1934). any ownership acts of anticipate affirmative required not be to or over control to the exclu them, deny then defenses and sion plaintiff ours) (emphasis will before the even contrary facts Ollson, ouster. Inman Bar- 1A As stated pleaded. is 56, 321 Or. P.2d 1043 Proce- Holtzoff, Practice Federal & ron & (1961): dure, p. 190 The district court that ruled had not sufficiently alleged claim of the defense objection to “One profits in proprietary no that inter- by Rule [a appellants’ est in was claimed facts be that there (6) motion is (b) ] was, therefore, that allegation there running tolled requisite wrongful detention face appear on the do not statute which possession. however, Appellants have, al- suggested It has been complaint. leged prof- are entitled mesne facts shown has where and, given provi- pleading the liberal make the statute would say sions of 8(a)(1), I.R.C.P. we cannot him, either bar, it is incumbent tions appel- that it doubt that by amendment pleading initial lants cannot facts to such a he falls under thereof, why to show claim. seems bar. Yet exception to that simple requirement of contrary Judgment and remanded for reversed (Footnote omit- Rule 8.” pleading under consistent with this proceedings ted). 12(b)(6) tions to be raised incongruity requiring it is senseless to defendant anticipate

tiff to affirmative defenses and go plaintiff’s complaint trial when plead then around them run. shows that the statute has The short best demonstrated when examines answer is that de- simple argument to that approved federal forms fense of United States I.R.C.P., prior raised to trial a motion for sum- originally approved in Rule mary parties able pp. where forms 4-11. One wonders affidavits, develop way facts pleading philosophy how those behind terrogatories depositions, and thus de- simple a claim statements of for relief termine complaints, whether there are triable issues form when tained those fact regarding the statute of limitations. together Rule ex- viewed with *4 Summary judgment preferable is much the requires pressly the defense of the statute way to handle statute of limitations defens- answer as practice es. Had could ever be followed terpreted this whole with all of its expenses, attendant could have been avoid- of statute of limitations ed. complaint. The fact that of the fed- some

eral courts have chosen not to follow Rule SHEPARD, dissents without J., required plaintiffs and have merely judges willing that some indicates expense

take justice shortcuts at the

some seem practice cases—a which doesn’t it. to commend have much argued

It is sometimes

practice