72 Neb. 319 | Neb. | 1904
This is a supplemental proceeding under the occupying claimant’s act to determine the value of the improvements on a half section of land situated in Nuckolls county, Nebraska. The case was before this court on its merits and the title quieted in the appellants, in the case of Lyon v. Gombert, 63 Neb. 630. After the judgment of this court quieting the title in the present appellants, appellees filed a supplemental petition, asking in substance to have the value of the improvements placed on the premises determined under the provisions of the occupying claimant’s act, chapter 63, Compiled Statutes (Annotated Statutes, 10259-10269). Proper orders were made by the district court on this application, appraisers were appointed as provided by the act, and returned the following findings:
“The undersigned appraisers respectfully report that in pursuance of the instructions of this court, we did on the 30th and 31st days of July, 1903, make the following appraisement as per your instructions in the above entitled cause:
200 acres of breaking on the north half of 14-3-8.. $400.00
House on said land......................... 60.00
Stable on said land......................60.00
300 rods of wire fence on said land............ 50.00
Total improvements.................... $570.00
Net value of rents and profits under your order $2,540.00
Less value of improvements above mentioned.. 570.00
Balance.............................$1,970.00
Value of said land in 1893, $4,000.00.
Value of said land in 1903, $7,500.00.”
It is urged by the appellants that the occupying claimants are only entitled to the actual value of the improvements placed upon the land by them, and that this is the full measure of their recovery; that this court should, from the report of the appraisers, make a finding allowing the claimants $570 as shown by the report of the appraisers, and charge them with rents and profits in the sum of $2,540, and either render a judgment here, or direct a judgment to be rendered by the lower court on reversal, for $1,970 in favor of appellants. .
It is contended on the contrary by the appellees, that there is sufficient evidence in the report of the appraisers to uphold the judgment of the district court in awarding the occupants the $3,500 as the increase in the value of the real estate, which was occasioned by their cultivation and improvement of the premises. We cannot fully agree with either of these contentions; for the rule is well established in this state, that “Where an occupying claimant is allowed for valuable and lasting improvements made while in possession, the measure of his recovery is the amount the real estate increased in value by reason' of such improvements, and not the cost of making the same.” Lothrop v. Michaelson, 44 Neb. 633.
We think, under this rule, that the report of. the appraisers should have been set aside, or that the court should have directed the appraisers to supplement their report with a finding not only as to the value of the land in
We therefore recommend that the judgment of the district court be reversed, and the cause remanded for further proceedings.
For the reasons stated in the foregoing opinion, it is recommended that the judgment of the district court be reversed and the cause remanded for further proceedings.
Reversed.