*1 plain- part of course of conduct on the property. their Tay- indulgence. The defendants tiffs been one of Rader has that the contract, given due notice agreed yet lor when Taylors nothing did to cure going cancel, Raders were Taylors four and granted time their defaults. The an- they been allowed to one-half times that which would have Wholly entry suffer the default. swer a lawsuit or agreed had failing comply the contract which with years receipt of the notice bound and some two after be provided contract, urge strict for in the the defendants now having to compliance only provisions those of the contract default, In fairness and do with notice of and cancellation. upheld and eqnity, judgment pleadings should be ruling judg- affirmed. The trial in its court was correct Taylor support ment. The defendants cannot make a case to either herein nor their con- allegations pleadings of their A appeal. tentions on new trial will be of no avail. judg- possession
Raders are entitled of their ranch. The ment the district should affirmed. of R. L. IVINS, MAY
EULA Ivins, the Will as Executrix Respond IVINS, MAY and EULA Plaintiffs Deceased HARDY, HARDY MARY J. F. v. ROBERT his ents, Banking BANK., State wife, MILES CITY Corporation; Individually McINTOSH, T. ARTHUR Trus and as Appellants. tee, Defendants No. 9651. (2d) 471. 333 Pac. Decided Nov. 1958. March
Submitted Rehearing 19, 1959. Denied Jan. *2 Rankin, Wellington Acher, Helena, D. Arthur P. F. F. Haynes, argued Forsyth, orally, appellant. for Johnson, Johnson, Butte, A. A. Keith Howard
Howard P. Johnson, argued orally, respondent. for MR. JUSTICE CASTLES: Hardy, taken Robert F. defend- appeal
This is the third brought by L. in the actions R. throughout, appellant ant and seeking respondent, the an appeal in each Ivins, plaintiff, and joint ven- Hardy and termination of from accounting ranching operation large of a and the purchase ture properties the From the date equally by them. owned property, buildings occupied the ranch acquired, has first were holdings. part the managed all or a and has September 1939. Since was made purchase original graz- lands, adjoining state deeded jointly owned then substantially been have federal ing and leases name, although the his by Hardy sole times expanded, at has although been con- joint and venture ownership Generally since December tinuously litigation been for appeals have speaking, the first two decisions against Hardy, respondent, and Ivins, plaintiff present appeal, is the third appellant. Bnt the defendant and are still un- made, properties to be accounting still has yet. is not counsel assume end divided and briefs of May by Eula plaintiff represented is now The interest present executrix. In Ivins, widow, appearing his as his accounting and money for suit, which continues the demand setting properties, partitioning a decree over asks for Hardy. But joined been with defendant other have prin- here, before, Hardy principal is the defendant convenience, as such. For cipal and will be treated appellant, plaintiff respondent, rather than his will be treated as Ivins executrix, who has been substituted him. appeal trial court’s
Upon first this court affirmed the enterprise acquisition operation decision that for the properties joint L 0 Ranch and other ranch was a ven- requiring accounting ture. lower court’s order an *3 ordering personal property a sale ranch sustained, sale real property but its order for the (2d) Hardy, 35, was reversed. 120 Mont. Pac. Ivins v. 15, 745, April decided 1947. appeal judgment
The second was taken from the trial court’s on accounting prior appeal, including ordered in the money $24,000. award This to Ivins of court affirmed that judgment April 3, Hardy, 1950. 123 Mont. Ivins v. (2d)
217 Pac. brought by was then Ivins the ter- present action tenancy in the real common mination by Hardy, including accounting all monies collected for an January 1948. An use of the lands since the value of his complaint present in this action was filed Custer amended County April 1951. The present third district grows eomplaint. Specifically, the third appeal out of interlocutory trial confirm- appeal is from the court’s decree ing a referees’ report proposing a division of the ranch be- joint tween owners.
Despite protracted of litigation, objec- course and the tions which by were made counsel in advance of the hearing, ‘‘ ’’ just for record, it must be borne in mind that the inter- locutory appealed decree here pursuant stipu- was entered to a lation between parties which, counsel for all among things, other provides:
“That all of lands, above and leases are owned by and held the plaintiff, L. Ivins, It. defendant, Robert F. Hardy, as owning tenants common each an undi- vided one-half interest therein.
“IT IS FURTHER ORDERED, ADJUDGED AND DE- CREED that the said lands are so situated that the same can partitioned be and divided between respective co-owners partition and that a thereof, according respective rights of the co-owners, hereby ordered, purpose and for that Board three referees shall appointed by the Court make partition such and division.”
Likewise, it must also be borne in mind that the decree here appealed was pursuant entered stipulation to a further between counsel for all in part above-quoted decree should be amended as follows: Interlocutory
“That said whereas Decree directs the com- partition partition parties’ missioners on divide the Taylor as Grazing described the lands held under Per- mits, provision following said be annulled and the sub- stituted therefore: ‘The Commissioners are advised that lands subject Taylor Grazing partition held under Permits are not such, give but and division the Commissioners are entitled to being adjoining adjunct such consideration to said lands as ' party they may lands held in either said decide fee *4 contribute, anything, to lands will the value the lands held if subject division, are for or that are leased which for a fee ” years.’ Emphasis added. term of foregoing, by stipulation counsel, all are the basic in a bring to on the referees were directed instructions which These disapproval by the district court. approval for dispute could be stipulations recognize properties that They recognize value of in kind. also divided on in their value the leases lands and the increase deeded by the adjoining further increased state lands was (43 Act U.S.C.A. Taylor Grazing on value of adjoin- public 315 et domain but seq.) section lands within jointly the state lands ing the lands owned they jointly on leases. which owned Allen, referees, 30, 1955, Simpson two On March report allocating plaintiff, and filed a certain lands to the April 4, 1955, the third other lands the defendant. On recommending a referee, Mitchell, separate report filed a dif- 15, Simp- ferent division of the lands. June On supplemental explaining son Allen in de- filed a statement Subsequently, basis partition. tail the for recommended interlocutory on December decree entered its present this that the approving report. It from this decree appeal is taken. supplemental statement to the referees’ contained following explanation: period ten month sections “The animal units for * hay the asterisk were mentioned with [certain
above lands] hay per acre according the number of tons of at arrived year produced average in an over we estimated would feeding period in period average of time. The winter animal units for being about months calculated the area we being period, it 10 month reason days and translated into cow, weight Figuring average of a simplify report. our required it yearling being 700 lbs. calf and 2°/c period -weight weight such an animal’s to sustain operation year. for one sixty days, complete giving thus hay produce land would judgment natural “It our therefore, require it acres of natural per acre, would ton further months. We calcu- carry animal ten hay one land *5 lated per developed and allowed three hay acres animal unit on land and potential hay four acres of land.” referees’ adopted by was confirmed and the testimony district court after hearing appraisers all and of numerous contending witnesses the parties testimony for whose shows opinion complete honest difference of familiarity but with the lands operations and with livestock area. The the testimony appraisers and cross examinations that all reveal eminently are men of integrity experience, qualified for the extremely they accepted difficult task stipulations under the all and that the the district confirmed was using made up “the formula as set Extension Circular by revised State Land Reclassification for Taxation Pur- poses in Montana the by Extension of Montana Service State College” attempt up in an a partition to “set that would di- the vide ranch into two balanced units for twelve-month car- rying operations.” on of “What Asked was break-down? Explain it the court?” one of referees testified: Well,
“A. if it strictly grazing section, was was it listed as a grazing section with the mark of code code [detailed appraisers devised their for own convenience under state Extension I following Service that was formula] and, township consequently, report. If it was land hay "potential hay meadow development, or meadow it listed, too, way plats report. was on the doing only pracitcal for reason arrived at from observa- you attempt purchase If operator tions. or become your range land, first consideration whether there’s a possibility improving it carrying capacity. for increased
“Q. if I Now, you partition understand understand the correctly, that was upon animal-carrying'-capacity considered Yes, basis? A. sir. No, A.
“Q. basis? sir.” Not a.n acre-to-acre carrying capacity in the estimated per of 25 cent The discount per- the leased state lands the federal attributed to values arising by ownership, reason of non-fee lands, mit asked question answer to referees in by one of the explained judge, trial as follows: by * * * ar- your reasons
“Q. you state to Court will from Yes, it was A. per at the 75 cent evaluation? riving that, holdings the entire ranch knowledge our the same have unit, practically unit for animal animal land, and the deeded Taylor land mean values—I or owner operator or the State land —but because Tay- the Federal complete control of title land doesn't have *6 25 that fact land, land, discounted Judge, the State we lor or animal unit gave per 75 of each per cent of valuation cent being plan as Taylor permit plan and a State designated on a * * * I think contiguous deeded land involved. it is its, how Taylor land is to element first to consider assurance and to what put in within the deeded land situated per- keep his may continuing have in operator [animal] Agency. mit from the [federal] following sum- concludes
mary: party allotted to each the amount recap
“A is as follows:
“To: E. L. Ivins % Net Value Animal Value Charged Acreage Units 1,593.48 1,593.48 54,352.40 Deeded and contracted 100% of interest in lieu Deeded 1,280 headquarters
in LO 100% 32.81 43.72 2,178.24 Federal 75% 3,200 State 75% Total....................1,720.29 Hardy To: Eobert F. 1,370.19 1,370.19 51,730.57
Deeded and contract 100% 233.13 174.85 12,712.01 Federal 75% 5,415.76 State 106.50. 75%
Total....................1,651.54” Speaking- in round numbers, confirmed gives 55,600 5,000 district court Ivins deeded acres and acres of state leases permits. gives 51,700 Hardy federal It deeded acres, headquarters buildings, 18,000 of leases and acres permits. The differential is carrying capa- the relative estimated city $20,800 and the to Hardy headquarters award value buildings and improvements. It should be added the area awarded includes the long same area he taken had occupied exclusively for himself.
The over-all hay area better than 200 miles square range pasture. meadow and language In the of the Powder Country, River ”3,500 spread.” the old ”LO” is now a cow It worth million operator, dollars. But livestock ranch produce. it carrying what will capacity Reconciled over-all including headquarters allowance values allowed to Hardy, the net difference between the total award Ivins and Hardy, units, the total award to when translated animal into quarters is three of one cow. passing,
In present appeal we should note that involves By mineral stipulation, no titles. each of re *7 served an undivided one-half interest in these. Also we should respondent’s appeal note motion to dismiss this on the ground interlocutory that an is appealable order not was aban during argument. doned motion, therefore, requires the This no opinion, objections discussion in this the do abandoned supplement and in the prior hearing made district In Murphy’s Estate, court. See re Mont. Pac. 1912C, 380; City Ann. Philipsburg Weinstein, Cas. of v. 146, 53
Mont. Pac. appealed, order court interlocutory In the here the trial found by referees, M. Allen and ”as filed C. Milton statement, together supplemental sup- Simpson, by testimony said ported hearing adduced at and that the there- as set forth portions of the several allotment partition and equitable a fair and considering quantity, and quality in, different found that the trial also thereof.” division Mitchell, was referee, W. A. by the third division recommended testimony. by sufficiently supported the evidence not any, referees received values, of land if What evidence land of that no evidence shown; does show is not but the record appel hearing in which by appellant at the offered values was adopt referees’ motion to objected respondent’s lant prop examined that the referees report. The record shows produc of the estimates erty, making his own notes and each ranch. a stock property involved is tion of said lands.” The units,” “animal capacity or carrying valued it in The referees ranching opera single treating holdings the entire as a livestock supple agreement litigants by tion. instructed As and to lands assigned mental to the deeded stipulation, by reason leases, value grazing the lands under state additional joint of Ivins names grazing permits of federal issued Act) “adjoining (Taylor Grazing lands on federal adjunct” or leased lands. deeded the state party questions prop-
Neither that the values the deeded by grazing are enhanced erties and the leased state adjunct” fed- “adjoining values contributed them the grazing range. range eral That federal increases the contiguous economy of elementary holdings value of deeded base to the dispute is over ranching. principal western livestock at being renewable but assigned, values leases state Grazing privi- Act going prices renewal, Taylor at time of permits but leges public being on the domain annual seasonal ad- rights federal preference except with no those accorded time any withdrawable at regulations being ministrative payment compensation. without renewal impermanence
Against argument any uncertainty renewal price and this on state lands such the values of materially discounts public domain asserts landowner, respondent adjoining base *8 454 practical in experience the federal are taken as
permanently in permittee renewable ad- who controls the jacent properties. base This assertion substantiated in by competent evidence, district court appellant replies but permit that a revocable still right. annual no is then, Query, proposed just is the unjust, division or is it by and was it confirmed in error or district court discretion? report sound That the stipu was made under lations to agreed which both sides is undisputable, and that report rejected only referees is to be for reasons which justify jury’s the reversal of a verdict settled law. Ivins v. 123 Hardy, 513, (2d) Mont. 217 Pac. 204.
That
by
objection-
the trial
confirmed
court
report”
able as
“majority
seriously urged
a
appeal.
was not
The-
report.
“minority
A
court confirmed
report” of
great
anomaly
referees is as
as
an
little con-
“minority
solation as a
jury.
verdict” of
As
opinion
was stated for the full
last
court
on the
prior appeal,
Hardy,
supra
518,
Ivins v.
“Appellant questions right judg- a money Ivins to ment as allowed the trial [$24,009.72],
“The rule is that a report findings referee when approved and adopted by judge the trial ‘will treated unassailable if any there is substantial evidence to sustain ’ them. In Lunke, 126, re 127; Mont. In re Pac. McCue, 80 Mont. Stephenson also, Pac. 341. See v. Flying Service, Inc., (2d) Rainbow 99 Mont. 42 Pac. transcript by the found the trial “As shown court, support there was substantial evidence to the referees’ evidence, had findings. In fact there was desired it, justified larger money which would have a much follow favor.” judgment Ivins’ urges specifications error, all appellant seven di- proposition the referees
rected to the followed prejudicially concluding erroneous rule in lands held *9 or under Montana the State of lease from under public domain in the government federal permit from the awarded such lands were to whom a value to the one were of in fee. lands owned per cent of value equivalent to by appellants: put As (using [$57,793.24] fifty-eight Thousand Dollars
“Nearly into value units, converted yardstick of animal the referees’ gets unit) which Ivins animal using per their value in dollars grazing privi- only in revocable land, Hardy gets in deeded must in addi- enjoyment he of which leges, the continued lands.” pay tion rental for use carrying capacity for above, referees fixed a shown As to reference Except units. each tract of land animal the sole method was headquarters improvements, this It must be remembered throughout division. method used jointly owned. that the $20,- improvements at headquarters
The referees valued the half of this to Hardy, them found Ivins’ allotted to Thus, in this one equivalent units. value of animal to instance, $305.88 a value of referees’ ascribes acres, allot- land, 1,280 an were animal unit. Two sections of headquarters in lieu his ted to Ivins one-half interest capacity improvements. carrying But all other calculations to dollar values. are in terms of animal units without reference jus- particular figure to upon seized this has appellant approving a court’s order the lower tify his assertion 55,632.40 land acres deeded allots report which referees’ gives 1,627.48 animal units Ivins equivalent of Ivins an assert that allot- $489,993.58, and further values of dollar Hardy equivalent as an deeded land to 51,730.57 acres of ting $419,- Hardy dollar values of 1,370.19 gives units animal the division of deeded contends appellant Thus 278.14. $70,715.44 in dollar values. Hardy by over favors Ivins lands further asserts appellant of calculation By same method Hardy charged against valuation that the “total [additional] on account State charged against Ivins in excess of and Federal $57,793.24.” Emphasis added. In [is] summary, this is an assertion that the referees’ euchres $128,000 out of over in dollar Using appel- values. special lant’s approach, taking figures piece- the referees’ meal, appear glance would at first to be result. How- ever, pointed out, we have the referees undertook their problem agreed stipulations under and their net final differ- carrying entiation in the capacity exactly quarters three one cow.
If arbitrary tiie figure of per $305.88 animal unit applied 1,719.54 tire animal Hardy plus units allowed overall to 1,720.29 animal units allowed over-all Ivins, this three quarters of a cow $229.41. difference comes to practical
To all purposes, intents and the dollar values allot- *10 by ted the referees’ report equal. are We come then a con- sideration of 75 per placed whether or not the cent valuation the permit “adjoining adjunct” lands as or to the deeded lands and the lands held under state is leases borne by and, out testimony, part substantial as a of this, whether or “potential” erroneously not the so-called values were used.
At might first figure blush we representing observe a permit value equal per to 75 cent of the value appear equitable. deeded lands not does However rec- reveals, and ord we are fact, aware of the valuation of purely (exclusive producing livestock ranches of mineral values and other values) they commercial upon based what will produce. Legislature recognized has the animal unit method of valuation. The state land is authorized to board determine the rental value of state lands on an animal unit basis. 1947, R.C.M. section 81-401. report? 1947, a referees’ R.C.M. sec-
What is nature of partition part making in “In the ref- 93-6319, provides: tion portions allot the property must and several erees divide quality rela- respective parties, quantity and thereof to respective rights according tively considered, provisions court, pursuant as determined * * *” chapter of this 1947, provides: 93-6321, R.C.M. section proceedings, their “The must make a specifying the manner in executed therein which trust, divided, the shares allot- describing share.” description ted to each party, particular each witli a R.C.M. 93-6322, part provides: section may confirm, “The change, modify, aside the set report, necessary and if appoint re- Upon neiv referees. port being confirmed, judgment must be rendered that such partition forever, be effectual judgment which binding ’’ * * * conclusive:
In Leiter, v. Wyo. 1, Field 390, 391, Pac. 622, 125 Rep. Pac. Am. St. 997, Wyoming Court discussed a somewhat similar problem as follows:
“The rule well-settled is that the action of commissioners partition ground unequal will not be set aside on the allotments, except in extreme partition cases-—as where the appears been upon wrong to have made principles, or where by very it is shown preponderance clear and decided of evi- dence partition grossly unequal.
commissioners regarded class of cases is at least con- upon clusive as verdict jury of a law, trial at will not except upon grounds disturbed similar to those on which may a verdict granted. be vacated Indeed, new trial the rule is maintained courts that regarded some it is to be *11 verdict, more favor than a for the reason that the com- usually missioners are selected the because of their superior judgment capacity perform particular and service, and are authorized personal to exercise their knowl- edge upon and to act property. Freeman, a view of the section Jersey 525. In New it partition said: ‘Where a has been actually by commissioners, made court, by the its well-settled practice, great interferes with their action with reluctance. only It is a where clear mistake has been made that pro- their
ceedings Bentley Co., will Long be interfered Dock with.’ v. Eq. supra, N.J. 480.” 123 Mont. Hardy, See also Ivins v. (2d) 204; Wilkerson, Pac. Wilkerson v. Okl. (2d) 937; Jur., Partition, Pac. 40 Am. and section 81, page 68. parties agree
Both that re- commissioners garded jury at least as conclusive as a verdict of a and should not except upon grounds be disturbed similar to those which The may granted. verdict be trial appel- vacated and new lant states his view the as follows: issue herein involved statutory
“The Referees failed to follow direction which given allot the to them to divide the and had been relatively quality quantity portions, considered. several they line, They must make a apparently assumed division line and the other person’s land on one side of the with one other This we submit person’s land on the side the line. Perhaps lands have been divided. not the law. fee could lands, contiguous man give to each it was more convenient quantity quality done, not be could apparently but ignored the Order of the relatively The Referees considered. the statute. Court
“We have cited decision of this Court [*] [*] [*] instruction, a disregards specific new jury if a effect granted. be trial should ‘‘ that the Referees on the contention case is based Our whole Court, en- statute, ignored Order ignored Tay- parts, treating ranch into two to divide the deavored fee.” owned in Grazing as if were Lands lor interlocutory order was amended related, the previously As If the referees followed agreement. stipulation stipulated order, appellants contained instructions previously quoted We complain. have heard cannot instructions. portion pertinent cannot, any makes hold that We or of the federal grazing lands state of either division stipulated did instructions permit. under
459 party ownership in allow, not so there land either and was no an clearly shows report be divided. The the referees advantages on attempt apportion equitably grazing hold- jointly these deeded base lands contributed to the owned ings, stipulate. that record indicates the instructions Hardy from resided premises he occupied time the ranch northerly headquarters on side buildings, which are premises, has for a that considerable time northerly portion used the of the has used ranch Ivins portion. the southerly referees’ division of the deeded lands worked already out to follow division the ranch tacitly observed the parties. consequence, party In each state grazing allotted leases grazing and federal permits on adjunct lands adjoining or to the base lands allotted to Any him. other unrealistic, allocation would have been it would nullify have nullified or tended to values leases contribute because federal grazing permits are issued with permittee’s reference to the holdings. base As appellant’s one of own witnesses testified: Taylor
“It Grazing permit] Act way. [a is allocated this If I have, instance, sitting here, section this man bor- here, ders I it border sides, on two I get it. If he borders it on sides, gets two he it.” Additionally, the record shows much of the state leased land and permit the federal land is only not adjoining adjunct land, the deeded it within lies it. objects
Appellant the referees based their part “potential valuations” argue some hay production.” lands were treated “in Examination of objection. referees’ does not sustain the The re- port these, shows calculations were made on among other figures:
Developed hay per land 3 acres animal unit Dry per farm land animal aeres unit grazing No. 3B per land 37 acres animal unit per No. 3 land animal acres unit 4No. per land unit acres animal hay Natural land per animal unit acres “30 potential acres hay per land at 4 a A [acres] [animal] ’’ U [unit]
Potential prospect; production tailing is a But is a fact. here potential the fact, as a and as out the pointed respondent, point dispute only involves a of per difference of cent 3,496.52 the computation. animal units involved in the This contention, potential per values and the 75 cent adjunct lands, valuation in the lands to' the deeded grossly unequal is wrong principles may not and made on be accepted in strong showing gross the some in- absence of equality wrong principles. or use of findWe difference of opinion testimony showing but no in the such war- as would rant reversing adopted our the order of the district court which report. and confirmed the referees’ federal condemnation case of United Appellant stresses the Cir., 1951, (2d) 300, 302, 190 F. where Jaramillo, 10 States v. owning, here, deeded with state judgment for a rancher lands grazing permit adjoining was and federal grazing land position the author- Appellant takes case reversed. County court for order- reversing the district ity for Custer But error referees. the in the Jara- ing appointment new the considering separate the jury’s the value of millo case domain, not which Jaramillo did public the permit land within damages reaching awarding condemnation. own, in verdict permits public the domain recognized that The court adjunct adjoining the deeded the value of base enhance do ‘‘ instructed, jury was further approval: land, stated with taking lands, of the Mr. the of the Jara- however, that on date cattle, for 48 head of and that grazing permit millo have did determining into take that fact consideration jury should land, lease, giving state to the the fee lands and the value of fee judgment as in its should land such added value leased availability accessibility given on account opinion Emphasis supplied. The court’s further permit land.” ranch, adaptability of the lands as determining states: “In availability it proper was therefore to take into consideration element appurtenant an accessibility permit land as ranching provided that consideration purposes, of value for be withdrawn could given possibility also constitu- any at time without or cancelled the Government pay compensation therefor.” obligation tional underlying percent evalu- principle principle This equally applied percent ation and the 25 discount over-all appellant desires. parties. percentages are not what the if adopt They very would may well be other than this court by a appointed examining properties originally as referees showing any But in substantial district court. the absence in the referees’ gross wrong principles inequality or the use of must stand. confirming report, the order of district re-refereed for may not be appeal, On of the referees lesser reasons. *14 Wyo. Leiter, 16 in Field v. Wyoming As the court observed “ * * *
1, the supra, page at page 49, at Pac. long large experience, appear men commissioners to have been lands, possessing personal acquaintance most of the of lands located general knowledge as these lands of the character, usefulness, and the value are. [*] * [*] It is reasonable the that magnitude, suppose, in a matter of this kind and experience and of their commissioners were selected because knowledge, reputation well as for fairness. in concerning values upon the evidence
“The conflict very small seem there would controversy pronounced is so proceedings of the that the vacation assurance ground for would commissioners same or different reference another contrary opin- degree material any in harmonizing in result subject. fact The speak upon competent those ions of capable fair and equally honest views that the known well widely regarding the value or more less differ will often persons real estate.” Following Wyoming this gross recites rule inequality or wrong principles, use of at the quoted which we opinion, outset of this appears and which also last Ivins Hardy v. appeal, cited, supra. likewise problem
Our is with the equality partition of the whole prima rather than with inequality any parts. of its facie presence adjunct or adjoining, contiguous the absence of lands under state leases and under federal by common knowledge economy basic factor raising livestock legislature recognized west. Our has the animal unit ranchers, basis for calculating value. To value of a producing property livestock is the value of the live- it produce. stock will respondent
While counsel for argued only has two of appellant’s objections properly court, are now before we have carefully specifications nevertheless examined all of error. requires Justice no less. joint ownership
This venture of these livestock ranch- ing properties undertaken Ivins and some nine- years years ago. During teen the last thirteen the owners have litigation. period present been in seeks which action Wyo- accounting entering is now its second With the decade. ming court, say equally we must that “the honest fair views capable persons widely will often differ more or less re- garding Nevertheless, wrong the value of real estate.” absent principle, preponderantly showing that and absent evidence partition grossly unequal, of referees must be court; whereupon “judgment confirmed the district must partition be rendered such be effectual forever.” R.C.M. 93-6322. section stated, interlocutory For the dis- the reasons decree of trict court is affirmed. *15 HARRISON,
MR. CHIEF JUSTICE and MR. JUSTICE ADAIR, concur. ANGSTMAN, Justice, and THE
MR. JUSTICE HONOR-
463 sitting place LOUCKS, Judge, ABLE R. District JACK (dissenting). MR. JUSTICE BOTTOMLY referees majority report of the inequality We think the of the ought approved pronounced the trial not to have is so that it. Grazing Taylor 12,712 of Federal awarded acres plaintiff. 2,178
land to defendant and acres to 51,- 54,352 plaintiff and It acres of deeded land to awarded 730 to defendant. acres carry only privi- Taylor lands
The Federal privileges are leges paid. for a rental These which must be dependent upon unpre- revocable and for their duration Congress. dictable action of Taylor grazing proper
If it of the were consider value Jaramillo, 10 land, proposition denied in United States v. Cir., (2d) 300, 190 F. cannot believe that are worth we majority as percent of the value of deeded land minority report referees found. One of the who filed a evidently procedure. Many testi- disagreed with that witnesses as subject placed fied on the and some the valuation low 15, 20, percent percent. witness instead One ques- plaintiff placed percent. the value The entire at proper percentage tion of what would be a contribution by dividing the land value of deeded could be eliminated party substantially same number so each would receive substantially deeded the same number of acres of land and land, to be made Taylor grazing acres of reasonable allowances land, any. if of course for the different character acreage party, division, giving exact to each It is true discrepancy even desirable. But when possible or may not be great here, it lacks the is as acreage given to each equity favors. which the law treatment equality acreage think equitable division should that a more We feasible, resort should be had to then if that is not made or equality of treatment be 93-6348, 1947, R.C.M. section party to the other. awarding compensation one achieved *16 We stipulation see to nothing the that binds defendant reaching award here made or procedure to the followed in that award.
THE Judge LOUCKS, HONORABLE JACK R. District (dissenting). joined
I with Mr. Angstman dissent, Justice in a from majority opinion. I my wish to record dissent from the order denying petition appellants’ rehearing. for a
The majority opinion approves a of property confiscation appellant Hardy appellants’ rights denies the secured to process Constitution, them under due of the State clause Const, art. section and the Fourteenth Amendment to Constitution United States. interlocutory
The of the affirmance decree of the district approves partition my which, acts the referees on opinion, were in violation of Congress the Act of of June 1934, (43 Taylor section 315 seq.) U.S.C.A. et known as the Grazing regulations pursuant Act and the federal issued to Act. lawfully partition could not the lands held under
Taylor were so order Grazing permits instructed of the district court. Taylor (43 Grazing Act
Section U.S.C.A. section part: 315b) provides in Secretary
“The Interior authorized to issue or cause graze be issued livestock such districts settlers, residents, bona and other such fide stock owners regulations under his participate rules are entitled to range, upon payment annually the use of the of reason- * * * So far as with the purposes able fees. consistent chapter, provisions grazing privileges recognized adequately acknowledged safeguarded, shall but the creation permit pursuant district or issuance of of a chapter any shall not provisions right, title, of this create in- in or terest, estate lands.” or provides: Regulation 43 161.7 C.F.R. by agreement, whether property,
“A transfer of a base testamentary disposition, will entitle operation law, or part such transferee, qualified, to all or to properly if otherwise transferred, permit of a license as is based on or or de- be terminated original permit and the will license creased such transfer.” period priority 161.2 Regulation defines C.F.R. 28, 1934, and immediately 5-year period preceding
as the June *17 the base range used with requires the Federal to have been during period. land or water Thus 43 C.F.R. lands must commensurate.
The base be (c) (1) provides: 161.6 any applicant issued unless permit
“No license or will be to adequate support feed to possesses he able to show that he during period time for permitted of his licensed or livestock they range.” which are be off the Federal to partitioned fee The record does not disclose lands respective them commensurate lands for the were the base for al- permit federal lands which the referees recommended respective parties. lotment to the nothing Grazing that the Federal lands
There record Hardy recommended for allotment to would be transferred to him alone. actually lands could be allotted as permit
Whether the regula- under the federal statute and referees recommended entirely beyond the control of referees. a matter tions is be permitted not to assume that will should be The referees is, they may That not they forbidden to do. which were done basis, animal unit recom- permit upon lands appraise the arbitrarily lands, then permit of allotment mend the permit the value of the lands recommended percent 75 of add parties to the estimated value of to one of the for allotment when cannot party lands allotted to that adjoining fee permit lands. lawfully partition separate arbitrarily adding of fee lands a to the value
In 466
and independent permit lands, value adopted the referees an illegal method many of evaluation condemned in cases where questions Jaramillo, of value were involved. United States v. Cir., 1951, 10 (2d) 300; Cir., F. Meyer, United States v. (2d) 113 F. 387; Morton Butler Timber Co. v. United States, Cir., (2d) 884; 91 F. Atlanta Terra Cotta Co. Georgia Ry. v. Co., & S.E. Electric Ga.
Plaintiff Ivins and Hardy admittedly defendant each owned an undivided one-half 107,362.97 interest acres of deeded land. They equal rights likewise had to revocable privileges 14,890.25 on permit acres under from the Federal Government. The permit that the recommended lands 2,178.24 12,712.01 Hardy. allotted acres to Ivins acres to Hardy charged Thus $43,464.24 with a dollar valuation permit account federal recommended allotment Hardy permit in excess of the lands recommended for allot- Hardy’s ment to propor- Ivins. share of deeded land thus tionately decreased and Irvin’s share is increased. give
To these grazing privileges equiva- revocable value lent percent to 75 equal carrying value lands of capa- city owned fee and six then allot times much of this permit Ivins, land as is allotted to effects a confis- cation of Hardy process without due of law. *18 process procedure.” Due than law means more “due As Supreme Washing United States Court said State of Oregon Fairchild, 510, ton ex rel. R. & Nav. Co. v. U.S. 535, 863, 56 L. Ed. S. Ct. 868: Constitution guaranty pro- extends to the “For rights, the substance of order of fundamental tection —to hearing precede which it. ‘The the notice and as to as well against instituted proceeding owner, even mere form of defend, process cannot convert used if he be admitted necessary law, deprive if result process due into compensation’.” him without of his (concurring). ANGSTMAN. MB. JUSTICE with, herein, majority opinion filed Having disagreed expressing Judge I the result stated Loucks in concur in for re- denying appellants’ petition disapproval of the order hearing. CO., Plaintiff IMPROVEMENT
NORTHWESTERN CORPORATION, Respondent, OIL FALLON MON-O-CO v. al., Defendants COUNTY, JENSEN, LEWIS et S. Appellants. No. 9735. 16, 1959. June 1958. Decided Jan.
Submitted (2d) 334 Pac.