201 P. 1037 | Idaho | 1921
This is an action to enjoin respondents from removing crops grown on a certain 80 acres. The complaint alleges that on June 28, 1918, a judgment of the district court for Twin Falls county was entered decreeing that plaintiff was the owner and entitled to the possession of the 80 acres in question, and that the respondents, John H. Kelley and Laura B. Kelley, had no interest therein. The complaint goes on to allege that at the time of said judgment certain crops were growing upon the premises
The uncontradieted affidavits, filed by respondents in support of the motion to dissolve the injunction, show that respondents John II. Kelley and Laura B. Kelley rented the land in question to respondents E'arl Kelley and John Tash for the season of 1918, under an agreement by which the former were to have one-half the crop and the latter one-half; that prior to June 17, 1918, the first crop of hay grown upon said land was entirely cut; that prior to September 3, 1918, the grain grown upon said land was cut and stacked; that prior to September 3, 1918, a second crop of alfalfa grown on about 8 acres of said land had been cut and stacked. The affidavit of respondent John H. Kelley also alleges that when a certified copy of the decree was served on September 3, 1918, he and his wife, Laura B. Kelley, removed from said premises.
Appellant claims that the crops were part of the realty and as such belonged to him. They were all fructus industriales, — that is, crops produced by labor and industry. We approve the rule that fructus industriales belong to one who, while in possession of the land, has raised them and severed them from the land itself, though it turn out that his possession was without right as against the true owner of the land. (Wakefield v. Dyer, 14 Okl. 92, 76 Pac. 151;
The order dissolving the temporary injunction is affirmed. Costs to respondents.
