128 N.W. 691 | N.D. | 1910
This case is here on appeal from an order denying plaintiff’s application for the appointment of a receiver to take charge-of and conserve a crop of wheat grown upon section 13 -in township 138 N. of range 106 W., in Billings county, North Dakota, during-the season of 1909. The action was brought in August, 1907, and the-original complaint is substantially in the statutory form for the determination of adverse claims to real estate. The relief demanded is-the customary relief sought in such actions and that plaintiff recover .$500 as the value of the use and occupation of the premises. The-
One of appellant’s contentions is that, under § 5710, Rev. Codes 1905, which malees one who wrongfully retains a thing an involuntary trustee thereof for the benefit of the owner, and § 5711, providing that one who gains possession of a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it, defendant is a trustee of the grain raised during the season of 1909 for its benefit. We need not determine whether either of these provisions might ever be applicable to the facts disclosed on the hearing, because plaintiff itself has effectively disposed of this ■contention. It concedes that the landowner may elect to take the value ■of the use and occupation or certain other damages, or that he may waive the value of the use and occupation and elect to take the crop. .In the case at bar plaintiff, in bringing this action, elected in a most ■effective manner to claim only the value of the use and occupation of "the premises from defendant. This election was' made August 6, 1907, •and until September, 1909, no step is shown to have been taken by plaintiff in any manner disaffirming its election so made, and such election was reaffirmed in its amended complaint. In the original complaint it did not intimate that it qlaimed to be the owner of the crops which had been or might be raised by the defendant; it stood by and permitted the defendant to crop the land for two seasons after making this election, and only sought to disaffirm it when the defendant, by his industry aided by the favorable elements of nature, had raised :and harvested a crop valued at over $6,000. It would seem that, as long as poor or ordinary crops were raised, plaintiff was content to rest upon its claim for the value of the use and occupation of the premises. It is clear, in the absence of such concession on its part which is made in its brief, that it is not, under the circumstances of the ease, entitled
We find still another reason why the plaintiff’s right to recover is limited. It has seen fit to proceed against the defendant under the provisions of chapter 31, Rev. Codes 1905. This chapter provides for actions to determine conflicting claims to real property, and § 7520,. the second section in said’ chapter, and § 7534, fix the nature of the-recovery which may be had in an action brought under that chapter. The last-numbered section is not applicable to the case at bar, but: § 7520 provides that a recovery may be had in an action by any party against the defendant personally served or who has appeared, or against the plaintiff, for the value of the use and occupation of the premises- and for the value of the property wasted or removed therefrom, in case of a vendee holding over or a trespasser, as well as in case where-the relation of vendor has existed. If such recovery is desired by plaintiff, he shall allege the fact, stating particularly the value of the-use and occupation, the value of the property wasted or removed, and! the value of the real property aside from the waste or removal, and demand appropriate relief in his complaint. A recovery of possession may also be had by the plaintiff or any defendant asking for the affirmative relief.
We think this plaintiff, who has proceeded under the chapter named,, is limited to damages for the use of the land in case of his recovery. What we have already said shows the inequity and injustice of the-rule contended for by appellant. In Aultman & T. Co. v. O’Dowd, 73Minn. 58, 72 Am. St. Rep. 603, 75 N. W. 756, this question is directly passed upon, and the supreme court of that state says: “The fact that the owner of the premises may recover the rents and profits of' the land for which it is being withheld precludes the idea of his right to recover the crops. It is the value and use of the land which the
Section 4752, Rev. Codes 1905, provides that the owner of a thing owns all its products and accessions, and it is urged that this makes the appellant the owner of the crop raised on the land in controversy. No authorities are cited, and it is stated in appellant’s brief that this statute has never been construed. Without deciding whether this section has any application to the present controversy, we remark that we have the impression that the word “accession” thus used applies "to things added to the realty, and that there may be a point of time when the products of a farm cease to be the property of the owner of the land, and that where a crop has been raised by one in adverse possession, it ceases to be the property of the owner of the fee out of possession and becomes the property of the adverse possessor on its severance from the soil. We cite some authorities to this effect: Churchill v. Ackerman, 22 Wash. 227, 60 Pac. 406; Stockwell v. Phelps, 34 N. Y. 363, 90 Am. Dec. 710; Page v. Fowler, 39 Cal. 412, 2 Am. Rep. 462; Martin v. Thompson, 62 Cal. 618, 45 Am. Rep. 663; Lindsay v. Winona & St. P. R. Co. 29 Minn. 411, 43 Am. Rep. 228, 13 N. W. 191; Woodcock v. Carlson, 41 Minn. 542, 43 N. W. 479; Aultman & T. Co. v. O’Dowd, 73 Minn. 58, 72 Am. St. Rep. 603, 75 N. W. 756; Phillips v. Keysaw, 7 Okla. 674, 56 Pac. 695; Kirtley v. Dykes, 10 Okla. 16, 62 Pac. 808; Killebrew v. Hynes, 104 N. C. 182, 17 Am. St. Rep. 672, 10 S. E. 159, 251; Hinton v. Walston, 115 N. C. 7, 20 S. E. 164; Jenkins v. McCoy, 50 Mo. 348; Dollar v. Roddenbery, 97 Ga. 148, 25 S. E. 410; 8 Ballard, Real Prop. § 99; Cobbey, Replevin,
To entitle the appellant to a receiver of the crops raised in 1909, it is necessary for it to show ownership of the crop or some interest in it by way of lien or otherwise. Further discussion as to its ownership is unnecessary. That it had no lien upon it is clear. The contract between the parties created no lien in favor of the vendor on the
The doctrine is thus stated: “To warrant the interposition of a court of equity by the aid of a receiver, it is essential that plaintiff' should show, first, either a clear legal right in himself to the property in controversy, or that he has some lien upon it, or that it constitutes, a special fund out of which he is entitled to satisfaction of his demand,, and, secondly, it must appear that possession of the property was obtained by defendant through fraud; or that the property itself or the-income from it is in danger of loss from the neglect, waste, misconduct, or insolvency of the defendant. . . . It is in all cases essential to the exercise of the jurisdiction that the plaintiff should have a. present, existing interest in the property over which he seeks to have-a receiver appointed.” High, Receivers, §§ 11 & 12.
We are compelled to hold that a case was not made on the hearing; on which the court could appoint a receiver.
The order of the District Court is affirmed.