Gunderson v. Holland, 133 N.W. 546

133 N.W. 546 | N.D. | 1911

Burke, J".

There is no serious dispute as to the facts in this case. The defendant, Holland, and his wife were in possession of a quarter section of land under a deed, running to his wife, from the heirs of one John M. Holland. While in such possession, the defendant, through a tenant, planted the crops for the year 1907. Thereafter, about June 26, 1907, the patent to the land was canceled in the local land office pursuant to a decree of the United States district court. This decree declared that the patent was obtained through fraud, and was void from its inception. May 28, 1907, the Northern Pacific Bailway applied to the local land office to script the land under its lieu script. The local land office rejected the application and an appeal was taken. The defendant, Holland, it appears, had procured the railway to make the application, and was a licensee under them. On June 26, 1907, the plaintiff made application to enter the land as a government homestead; but his application was held in abeyance pending the appeal of the railway company, until long after the cause of action herein accrued. Plaintiff squatted upon a part of the claim and built a cabin thereon. He worked as assistant cashier of'a bank at a town some 6 miles distant, and slept in the cabin nights. He saw the defendant in possession of the rest of the tract, and protested against his occupancy, but brought no action in ejectment. He had no farming tools or stock. Defendant in the meanwhile was in full possession of all of the tract excepting the cabin, and kept his stock in the pasture. He had other buildings upon the tract but did not live thereon. He asserted his right to the land as against the world in general and against this plaintiff in particular, and was so asserting it when this suit was begun, October 9, 1907.

Plaintiff having alleged that he was the owner and entitled to the immediate possession of the grain upon the 9th of October, 1907, he must prove the allegation. He claimed no title or interest therein, however, excepting what he might have by virtue of his interest in the land upon that date. When called upon to prove his ownership of the grain, he replies that it is his because he was upon said date a contestant and applicant for land upon which the grain had been grown. He attempts to prove a material allegation of his complaint by claiming that he is going to win in another action involving the title to the land. This is not permissible. To maintain a replevin he must first gain possession of the land, and must gain such possession before the crop has been severed from the land and reduced to personalty. To be sure, more than a year afterwards the contest to the land was decided in favor of the plaintiff; but at the date of the bringing of this suit it was still undecided. Plaintiff’s right to the grain must be tried as of the time of the commencement of the action. See 34 Cyc. p. 1387, and cases cited. In order that the court might decide the replevin case in favor of the plaintiff, it would be necessary to decide the contest regarding the title to the land, which contest was at the very time in litigation in another proceeding before the Department of the Interior. This courts will not do. See Cooper v. Watson, 73 Ala. 252; Lieberman v. Clark (Wheeler v. Clark) 114 Tenn. 117, 69 L.R.A. 732, 85 S. W. 258; Adler v. Prestwood, 122 Ala. 374, 24 So. 999; Johnston v. Fish, 105 Cal. 420, 45 Am. St. Rep. 53, 38 Pac. 979; Brothers v. Hurdle, 32 N. C. (10 Ired. L.) 490, 51 Am. Dec. 400; Baker v. Campbell, 32 Mo. App. 529; Anderson v. Hapler, 34 Ill. 436, 85 Am. Dec. 318; Street v. Nelson, 80 Ala. 231; Brown v. Caldwell, 10 Serg. & R. 114, 13 Am. Dec. 660, 12 Mor. Min. Rep. 674; Halleck v. Mixer, 16 Cal. 574; Hines v. Good, 128 Cal. 38, 79 Am. St. Rep. 22, 60 Pac. 527; Washburn v. Cutter, 17 Minn. 361, Gil. 335; Caldwell v. Custard, 7 Kan. 303; Barnhart v. Pord, 37 Kan. 520, 15 Pac. 542; Lehman v. Kellerman, 65 Pa. 489; Hull v. Hull, 1 Idaho, 361; 34 Cyc. 1365; 42 Century Dig. title Replev. § 23; 34 Cyc. 367, § “e;” Olson v. Huntamer, 6 S. D. 364, 61 N. W. 479. Plaintiff has clearly mistaken his remedy. If he could establish his contention in this case, to wit, that his rights as entryman dated back to June, 1907, when he tendered his filing, and that he became in legal effect upon that day the owner of the land, yet he would not be entitled to the crop. He might possibly be entitled to recover foT the use and occupation of the land while it had been withheld from him, but that is altogether a different remedy. In the case of Aultman & T. Co. v. O’Dowd, 73 Minn. 58, 72 Am. St. Rep. 603, 75 N. W. 756, the court says: “It is the value and use of the land which the owner recovers, and not the fruits of the land. A contrary rule would give the owner the value of the use of the land, and the value of the labor of the farmer in producing the crop, for the crop contains the value of both.” See also Golden Valley Land & Cattle Co. v. Johnstone, 21 N. D. 97, 128 N. W. 691; Olson v. Huntamer, 6 S. D. 364, 61 N. W. 479.

If, then, it be conceded that plaintiff was the owner of the land at the time of the commencement of the action, which, however, we do not decide, he would not be entitled to the severed crops. There is much authority, however, holding that the defendant was not a trespasser, but a good-faith claimant and applicant for the land. See Phillips v. Keysaw, 7 Okla. 674, 56 Pac. 695; Rathbone v. Boyd, 30 Kan. 485, 2 Pac. 664; Page v. Fowler, 28 Cal. 605; Stockwell v. Phelps, 34 N. Y. 363, 90 Am. Dec. 710. In which he would, of course, be entitled to the grains grown upon the land.

The trial court made findings herein which have the same effect as though found by a jury; a jury having-been waived. These findings have not been challenged by any assignment of error in the statement of the case, and have been accepted by us as correct. They are supported by the evidence. At the dose of the plaintiff’s case he had failed to show any title to the grain in suit, and the trial court, properly found so, and ordered the grain to be returned to the defendant from whom it had been taken.

Judgment affirmed.