Kirkpatrick v. Fonner

82 Neb. 32 | Neb. | 1908

Good, O.

Lizzie Fonner leased certain farm lands in Hall county to one Dou for a term of one year, beginning March 1, 1906, for cash rent. The lease contained a clause prohibiting the tenant from subletting the premises without the consent of the landlord. In October, 1906, after the crops were matured and partially harvested, Dou, the tenant, sold the corn stalks, from which the corn had been gathered, together with 40 acres of ungathered corn, to Kirkpatrick. Within a few days the tenant removed from the farm and surrendered the keys of the house to Mrs. Fonner. The tenant claims that he surrendered only the possession of the buildings, while Mrs. Fonner claims that he surrendered his lease and all right to the premises. Within a few days of the purchase of the corn and corn stalks in the fields, Kirkpatrick turned about 50 head of cattle into the fields for the purpose of feeding down the corn and stalks that he had purchased. A controversy arose between Mrs. Fonner and Kirkpatrick with reference to the latter’s pasturing his cattle upon the premises. The cattle were driven from the premises, and, when Kirkpatrick attempted to drive them back, there was a further controversy with Mrs. Fonner. He, however, put the cattle again in the fields, and it appears that they were driven out on two or three different occasions. Kirkpatrick brought this action to enjoin Mrs. Fonner from driving his cattle from the premises, or interfering with him in the harvesting of the corn and corn stalks which he had purchased from Mrs. Fonner’s tenant. In his petition the plaintiff charged that the defendant had wrongfully driven his cattle off of the premises on several different occasions, and that she was interfering with his gathering and harvesting the crop which he had purchased, and that she had threatened and would continue to interfere with his gathering and harvesting the crop unless enjoined. Mrs. Fonner pleaded in her answer the provisions of the lease against subletting, and charged that Kirkpatrick’s cattle were trespassing upon her premises and doing great injury thereto, admitted certain formal allegations in the petition, and denied all the other allegations thereof. Upon a proper showing a temporary 'order of injunction was allowed by the county judge. Upon a trial of the issues thus framed the district court found in favor of the defendant, and dismissed plaintiff’s petition for want of equity. Plaintiff has appealed.

A number of questions of law are presented and argued in the briefs, which are unnecessary to consider at length. We do not think the provisions of the lease against subletting were in anywise a bar to the right of the tenant to •sell his crop upon the premises. We think the tenant had the undoubted right to sell the crop, including the corn stalks, and that the purchaser acquired the right to go upon the premises during the life of the lease for the purpose of harvesting or removing the crop in the usual and customary manner. And during the life of the lease the landlord would have no right to interfere with the purchaser in the proper harvesting of the crop. But in this case the evidence does not show that the appellee was guilty of such interference as would warrant the issuance of an injunction. It is very apparent that she did not want Kirkpatrick to pasture 50 head of cattle on her farm, and that she did not want his cattle to range upon and over her premises and about the buildings thereon, and it appears that she believed that the appellant was a trespasser, and ordered him on several occasions to take his cattle off, and that after the cattle had been driven off of the premises by some one she refused, to permit the appellant to return the cattle to the premises. It appears, however, that he disregarded her refusal, and returned, the cattle into the fields. The evidence shows that on several occasions thereafter the cattle were either driven from or permitted to escape from the premises. The appellant charges that appellee drove the cattle away, and, in fact,so testified. But it appears that his evidence in that respect is a conclusion, rather than a statement of fact. It is not apparent that he saw the appellee drive the cattle from the field, or that any other witness did so. She positively denied that she drove the cattle off, or authorized any one else to do so. In this state of the record we think the evidence was wholly insufficient to justify the issuance of an injunction, as it does not appear that the appellee was in anywise actively interfering with the appellant in the harvesting of the corn and corn stalks which he had purchased from the appellee’s tenant. The finding and judgment of the district court are supported by the evidence, and should be affirmed.

We therefore recommend that the temporary order of injunction, which has been continued in force by means of a supersedeas bond, be dissolved, and that the judgment of the district court be affirmed.

Duffie and Epperson, CC., concur.

By the Court: For the reasons given in the foregoing opinion, it is ordered that the temporary order of injunction granted in this cause be dissolved, and that the judgment of the district court be

Affirmed.