183 Iowa 934 | Iowa | 1918
By an amendment to the petition, the plaintiff says, as to the -first count, that 50 acres of corn ground were unplanted because of the wrongful acts of the defendant, and that about 55 acres which were planted were seriously damaged, resulting in loss to plaintiff on this account of $1,200; that plaintiff’s oats crop was damaged $118; and as to the sécdnd count, it is alleged that the loss -and injury to corn crop were $1,350, and loss and damage, to the oats crop, $222. '
The answer is in denial, and it says, further, as to each count of the petition, that plaintiff knew the situation, and knew of the break in the tile at the time it occurred; and that, by the expenditure of a nominal amount, it could have prevented the injury, and for that reason it is not entitled to recover; and further, that, if plaintiff’s premises were flooded at all, it was not due to the breaking of any tile, but to the insufficient drainage system, as constructed by the drainage district.
It is stated by appellant in argument that the principal errors relied upon for a reversal have reference to the admission of testimony, and instructions to the jury. A considerable part of the argument by counsel for both sides is in regard to the question as to whether plaintiff can recover on the first count, as the owner of the land, for injury to its two-fiftlis share of the crop. At the close of all the testimony, defendant moved the court to withdraw from the consideration of the jury any right of the plaintiff to recover under the first count for alleged loss to crops or
1. As to whether plaintiff can recover for its two-fifths share. Appellant concedes, in its reply argument, that this question may involve only a technical rule of pleading, but that they are entitled to have the rule observed. It is conceded by appellant that, under the statute, an action must be maintained by the real party in interest; but it contends that the owner of the land was not the real party in interest, as regards the crops that were growing upon the premises, and that the tenant was the only person entitled to sue on account of their injury or destruction. Appellee concedes, as we understand it, that this is the rule in some cases, but insists that, where the crop is'to be raised by the tenant on shares, the rule does not apply, and that this is especially so since the suit was not brought until after the tenant’s lease had expired, and the tenant has assigned to the landowner the damages to his share of the crop; and they say that, under such circumstances, the tenant could have no interest in the two-fifths share that would go to the landowner. It may be possible that it could be wbrlced out by the tenant’s suing as trustee for the'owner of the land as to the landlord’s share; but it seems to us that this would be an awkward way to go at it, and that such circumlocution is wholly unnecessary, as applied to the facts in .this case. Appellant cites, on this point, Drake v. Chicago, R. I. & P. R. Co., 70 Iowa 59; Townsend & Knapp v. Isenberger, 45 Iowa 670; Rees v. Baker, 4 G. Greene 461; Blake v. Coats, 3 G. Greene 548; Alwood v. Ruckman, 21 Ill. 200; Baltimore & O. S. W. R. Co. v. Stewart, 128 Ill. App. 271, 274.
We shall not attempt a review of all these cases, but content ourselves by referring to some of them, and our conclusion that appellee’s cases, under' the facts of the instant case, are controlling.
It is true, as contended by appellant, that, in the Drake case, supra, it was said that a landlord has no such interest in the growing crops of his tenant as to enable him to maintain an action against a person who injures the crop, and in the Townsend v. Isenberger case, supra, it was said that the share of the crops reserved by the lease to the landowner is to be regarded as rent. But these cases are distinguished in some of our later cases. It should be borne in mind, we think, that, in the instant case, there is no question of the .right of possession of the crops grown on the leased' premises, such as might arise in a controversy between the landlord and tenant. Under such a lease, there is no liability on the tenant’s part to the landlord for the share which the landlord would have received had the defendant not flooded the land; the tenant has not agreed to pay the rent in money, nor is he obligated or bound to deliver any grain or other crops which he was prevented from growing by' the alleged wrong of the defendant. The cases are referred to in Riddle v. Dow, supra, where it is said:
“It is undoubtedly true that the authorities generally hold that, where a tenant on shares has exclusive possession of the leased premise's, the legal title to the entire crop*940 grown thereon and the right to possess it are vested in him until the share which is to he delivered as rent is separated from the remainder of the crop; and some authorities hold that such ownership is exclusive. It will be found, however, that, in most cases of that character’, the landlord, or person claiming through him, was endeavoring to assert a right of possession as against the tenant before a division of crops had been made, or that there had been a conveyance of the land before a maturity of the crops, and a claim made that the landlord’s share did not pass by the conveyance. But the rules which control in such cases are not applicable to this case.”
The Riddle case was a garnishment case, where it was held that a mortgage by a lessor upon his share-rent interest in the crop was paramount to a garnishment of the tenant. In that case, in speaking of the Townsend v. Isenberger case, the court said that what was said in regard to the ownership of the tenant was designed to show that the rent had not accrued, and was not payable until after the purchaser at the sheriff’s sale had.acquired- title to the land; hence that the case was controlled by the rules that rent reserved by lease, not accrued, passes by a conveyance of the land, and that a purchaser under execution sale is entitled to the rent accrued or falling due after the execution of the sheriff’s deed. And, in referring to Drake v. Chicago, R. I. & P. R. Co., supra, it was said:
“But the nature of the landlord’s claim to the crops in that case is not shown. The point was decided without discussion by the court, apparently on the authority of Townsend v. Isenberger. The case cannot, therefore, be regarded as in conflict with the views we now express.”
It was further said, in the Riddle case, after reviewing the authorities:
“But it was not said that the interest of the landlord in the crops raised, was no more than it would have been*941 had the rent been payable in money. In no case which lias been called to our attention has a share of the crop to be delivered as rent been treated, in all respects, as though it were money rent. That it should not be, is clear, on principle. When rent is to be paid in money, the obligation of the tenant is discharged by the payment of the specified amount of money, from whatever source obtained; and, if a share of the crop to be grown,, or its equivalent, is to be paid as rent, the requirements of the lease will be satisfied by the delivery of the share itself, or by delivering an equivalent — as crops of a kind and quality equal to the share designated. But when the rent is to be paid by delivery of a share of the crop raised on the leased premises, and no option is given to deliver an equivalent, the obligation of the tenant can be satisfied only by a delivery of the specified share of the crops groivn on the leased premises. Nor can he be compelled to pay anything but the stipulated share, unless he fails to deliver it according to the terms of his contract. * * It was intimated, however, in Parker v. Garrison, 61 Ill. 250, that the delivery of a share of grain reserved as rent might be enforced as the execution of a trust. In that case, the tenant had agreed to deliver as rent, one half of the crops which he should raise on .the leased premises; but it was to be paid in corn. He refused to deliver the stipulated share, and did not separate it from the remainder of the crop, but intended to sell all of it. He was enjoined from selling or otherwise disposing of the grain at the suit of the landlord. The court said that the landlord had an interest in the corn; that ‘it justly and equitably belongs to him;’ that ‘the defendant, Harrison, had received from him the entire consideration. of it, * * * and it was his plain duty to deliver the corn to the complainant.’ That case is an authority for the theory that the landlord has an interest in the crop which he is to have a share of as rent, before a di*942 vision is made, wliicli is more than a mere right to a landlord’s lien, and which'the courts will protect. It should he remembered, in this connection, that the rule that the legal title to crops, a share of which is to be delivered as rent, and the right to their exclusive possession, are in the tenant until a separation and delivery of the rent share, is fully recognized by the Supreme Court of Illinois [citing cases].”
In the case of Niagara Oil Co. v. Ogle, supra, the Supreme Court of Indiana held that:
“While growing, both landlord and tenant had an interest in the crops, and both would be entitled to damages for their injury or destruction, * • * * whether, at the time this suit was .commenced, the landlord and tenant owned the crops as tenants in common, or whether they were in possession of the tenant under contract for the delivery of one half thereof, in the bushel or by weight, to the landowner for rent, when harvested, or whether they had been, when the action was commenced, divided in equal shares between landlord and tenant, would not affect the landlord’s right to an action for damages for injury by a third person to the same. No right of possession of crops is here involved. The relief prayed is for damages for injury to .a specific property, and such relief will not be denied simply because a third party may be in the rightful temporary possession thereof. No question is raised here concerning a defect of parties plaintiff; and certainly, in the absence of such objection, the landlord, though the owner of the undivided hálf only of the crops, may, alone, maintain an action for such damages as he may have sustained by the injury [citing cases].”
The other cases cited sustain the proposition. The cáse of Doke v. Trinity R. Co., supra, was a case to recover damages for injury to crops from an overflow of the land. We shall not further discuss them. In this case the lease had
In Minneapolis Iron Store Co. v. Branum, (N. D.) 162 N. W. 543, at 552, it was held, citing numerous cases, that, under a lease similar to that in the instant case, the owner of the land and the tenant are tenants in common of the crops. See, also, Doke v. Trinity R. Co., supra, where it was said that this is in accord with the great weight of authority.
TVe are of opinion that the court did not err in overruling the defendant’s motion to direct a verdict as to this first count.
2. As to the questions of fact whether the piling driven by defendant obstructed the flow of water, and the condition of the crop and land when the injury occurred, these and other questions were questions for the jury, and have sufficient support in the testimony. We shall not set out the evidence.
“That the burden of proof is upon dex x fendant, and there is no evidence to show that the plaintiff had any right to remove the posts [piling] which constituted the obstruction, or any right to change the course of the drain across which the posts or piling were placed, the drain being a large drain and under the control of public authorities; and for the further reason that there is no evidence to show that the obstruction was discovered in time to avoid all the damage, but on the contrary, the evidence shows that the water had accumulated*944 and a part of the damage had occurred before the obstruc- ■ tion was discovered.”
We think the court was right about this. Appellant seems to rely on 4 Sutherland on Damages (3d Ed.), 3079, to the effect that, if plaintiff has access to the nuisance, or the means or opportunity of avoiding or mitigating the injury it causes, it is his duty to abate it, or to take proper steps to lessen the damage; but the same authority holds that the fact that plaintiff might have ahated the nuisance causeid by obstructing the ditch, but did not, it being necessary to go upon defendant’s land for that purpose, will not affect his right of action or the damages.
As to the other defense, that the drainage system was insufficient, this seems not to be seriously relied upon by appellant in argument. At any rate, the jury was told that there could be no recovery unless there was a finding that defendant had obstructed the flow of water, and the jury was limited, in the allowance of damages, to such as were occasioned by the acts of the defendant.
5. The seventh instruction, as to the measure of damages, has reference to the second count. It is conceded that the same rule was adopted by the court as was applied to one of the elements of damage in the first count. So that what we have said as to that disposes of the seventh instruction.
6. Finally, it is thought by appellant that the damages allowed are excessive. Defendant introduced no evidence to rebut appellee’s evidence at this point. The argument is that the court will take judicial notice of the fact that farm land in Iowa, such as that flooded, would not rent, under favorable conditions, for $10 an acre, — that is, that the rental, value or value of the use would not exceed that amount,- — and that the verdict is more than that for the entire farm. But, under the evidence and instructions, something could have been allowed for injury which was more or less permanent, in addition to the rental value. •The estimates of some of the witnesses were that the damages were more than the amount of the verdict. We are not prepared to say that the verdict has not sufficient support iii the" testimony.
Our conclusion is that no prejudicial error appears, and the judgment is, therefore, — Affirmed,