*1 P.2d demnity injury. permanent This survivability ruling Court in favor R. Swanson, V. SWANSON and Lottie City quoted approval the claim wife, Hubbard, and Bessie Piaintiffs- Appellants, Roth, of Milwaukee v. 185 Wis. 201 N. 251,W. as follows: Idaho, STATE of Investment and Evans * '* The award fix does not Company, corporation, Defendants- Respondents. to, determines, right only compensation in- of the for the amount No. 8865. jury. right compensation Supreme Court of Idaho. statute, is fixed the amount
merely the administrative detail.’ [61 Nov. 1960. P.2d 865.] Rehearing Denied Jan.
And continuing case, Thacker following
Court made the announcement: unpaid
“This court has held por- compensation
tions of under Sec. 43-
1113, I.C.A., I.C., sur- [now § 72-313] good
vive and no reason has been
presented why part survive, if being if
conceded that death had not ensued
the whole amount would have been awarded,
properly thereof, whole award had made,
even if an not been
would survive. [Citations.]” Mahoney City Payette, also supra,
See the same effect. appellants’ assignments deem
We of er- without merit.
ror to
The order Industrial Accident respondent. is affirmed. Costs
Board
TAYLOR, J., KNUDSON, C. Mc- McFADDEN,
QUADE JJ., concur. *3 Bistline, and Don Poca-
F. M. Bistline R. tello, appellants. for Gen., Counsel, Legal Padgett, Wm. Chief R. Boise, Andrew M. for Harrington, Department Highways, de- fendant-respondent.
Gregg Falls, Potvin, R. American Evans Investment Co. *4 Benson,
Frank Atty. Gen., L. Thos. Y.
Gwilliam Langley, Attys. and Frank Asst. Hohler,
Gen., Anton former Atty. Asst.
130
Township South, 6 of Range 33 East the Boise County, Power Meridian in Idaho. The property controversy borders the northwesterly right way line of the Oregon Company. Short Line Railroad 42 ft. In a 280 1926 warehouse ft. KNUDSON, persons Siding by four moved Michaud Justice. ft. northerly joint 16 as adventurers. Appellants quiet title seek to (plaintiffs) part of the of the a warehouse stands strip 16 and land ft. 400 feet wide southerly ft. in controversy 26 and the long Siding at what is known Michaud company. on land from railroad leased Power Company described as: operated warehouse was “Beginning point at a de- south 53 joint arrangement 1927 until adventurer grees East, 10 minutes 890 feet Michaud incorporated when it was %the corner between Sections 15 April Company. On Warehouse & Grain 16, Township South, 6 Range East 33 purchased 6, 1948, wife Hubbard and W. J. of Boise Meridian, thence 72 North corporation and took all the stock of degrees feet; 20 Minutes East 400 possession time. at that of the warehouse thence degrees South 17 minutes 1956, 25, April W. Hubbard died point Northwesterly East to a all appellant Bessie Hubbard succeeded right way Oregon line of the Short husband. rights of her deceased Company Line Railroad to the true allege Appellants Swanson wife R. V. point beginning; thence South 72 in fee is the owner that Bessie Hubbard degrees 20 along minutes West subject to area involved right Northwesterly line way appel- purchase A.) executed (Ex. Line Oregon Railroad Short 1951, September bearing date of feet; lants of 400 thence North a distance describe the agreement does feet; 40 minutes degrees West 16 date involved. Under property here degrees North 72 20 minutes thence com- (being the date of feet; March of 400 thence a distance East action) appel- trial of this mencement minutes East 16 degrees South and the said Bessie R. V. Swanson beginning, point of lant the true feet agree- supplemental into entered rectangular Hubbard being tract feet same that the stated- wherein (Ex. B.) long ment feet in Section and 400 wide *5 I3I inadvertently prove appellant property agreement such oral was controversy in was Mrs. who testified: and .Hubbard agreement purchase omitted from said pur- that said the terms and conditions of “I at understood the time that the to and agreement applicable chase shall be certain warehouse erected on that property include the here involved. spot told the because L. L. Evans had they company did warehouse that if In support appellants’ of claim of owner- build it there he would them the deed ship they allege they that in are now ” warehouse site. possession of property by said of virtue (Mrs. witness not testi- Hubbard) did purchase said agreement; that the vendors fy that she heard L. L. make Evans purchase said agreement and their witness statement nor did other predecessors long have been testify a testify or offer such state- to possession continued since said ment presence. was made his 1926,coupled complete dominion over same open and and visible owner- acts of The other (F. witness M. Bistline) testi- ship, in is, that there and has since 1926 fied:
been thereon, located northwesterly “A. a This was ap- meeting held ft. of warehouse; predecessors a that their proximately in it, As I L. recall period interest during said since Evans, L. the father Evans, Paul open, pos- notorious and adverse died, believe, I in April and session of said during said this was meeting of the board of di- period paid all taxes assessments at rectors some time probably later were levied property. year, early and at that up Mr. brought Davis the matter During appellants sought thé trial about that no the fact deed had been testimony introduce the of two witnesses executed, said to Mr. Evans that L. prove tending Evans, father, oral on the L. promised, had part they put if L. had stated that (now L. Evans warehouse deceased) up they there see he would had all owner of former the land in controversy necessary needed for it.” company effect that if warehouse would build place warehouse in rulings the trial court in striking where it is located such former owner would testimony Mrs. Hubbard and sus- give them whatever land was needed for taining objections testimony of Mr. Appellants’ attempt the warehouse site. to Bistline relative statements L. L. property would be assigned whether certain as error. Evans are (deceased) company? to the warehouse are merit. deeded over assignments Such without property on the A. There some attempt establish an oral In an highway they wanted north side part Paul Evans agreement on to, to it. gave them a deed a deed so I (successors Investment Evans *6 support appel- of The evidence offered Evans) witness said L.L. wholly insufficient. lants’ said contention is testimony as his F. M. Bistline continued by prove upon appellants The burden follows: clear, certain convincing and satisfactory, Well, to the conversa- pursuant “A. convey that an oral evidence made, tion, nevertheless, was the deed made and was property the real involved and, he it, said Evans as I recall Paul Albert, Idaho into. entered Johnson at that would see that was made a deed Co., 403; Development Prairie 170 P.2d time. It called to his attention was 616; P. Leiberg, Ltd. he said for, the and he deed asked was P. Taylor, Wormward v. would see that the deed was 2d 686. asked company, was warehouse and he Appellants assign as error the action of needed, for a deed what court in setting the trial the aside default on, long later after that very wasn’t —it judgment February on entered that what the a deed As to made. was respondent’s in support The affidavit filed of contained, know that I never did deed judgment motion to set aside default said until the 1953 when Swan- date in Mr. original appearance that the on discloses Falls I came American down to son attorneys respondent by behalf of was made say Evans, as I after talked to Mr. employed by who interested letter Mr. had received the Swanson company. defense insurance Thereafter the we State, that time from the and at of the the State of action was turned over to piece checked it with the belief that employed attorney Idaho and referred to an it, but we was included at Department Highways who by the in it.” was not included that it found but the action time was familiar with referring the (in sam' Paul Evans High- employ Department of the left the the of directors as meeting of the board the ways time defense of about the the foregoing referred to the Bistline witness The turned over to the State. action was testified as follows: excerpt) thereafter whom the action was attorney to filing informed the was not you recall what referred And do “Q. part of on the that, of withdrawal regard motion meeting appeared abuse of the trial court attorneys discretion originally who justify reversing respondent would us in the order com- and assumed counsel plained of. in a status. action was still demurrer statutory specifications will authority remaining for relief from error together considered all relate to
defaults is contained in I.C.
5-905
since
may,
provided
same
have
judgment
that a court
contention that
should
discretion,
judg-
evi-
party
appellants upon
its
relieve a
been
entered for
ment,
proceeding
taken
dence
con-
By
order
other
in the
case.
reason of
inadver-
through
mistake,
him
tention
to as-
we must examine the record
tence, surprise
neglect.
certain
findings
excusable
if
and conclusions
supported
reached
trial
court are
application
An
to set
aside default
substantial
record is
evidence. The
is addressed to the
legal
sound
discretion of
clear
title to the
as to whether the record
the trial court and the order
court
L.
property in issue
in the name of L.
stood
will not be reversed
appeal
unless it
Evans
at
or the Evans Investment
clearly appears that
its
court abused
placed
(1926)
the warehouse
discretion; and in determining
question
portion
involved.
power
discretion the
of the court should
subsequent
*7
appear
to
However it
that
does
freely
be
liberally
and
exercised under the
title
(1934)
L. Evans
such
death of L.
the
statute to mold and direct
pleadings
its
so
cor-
Company,
a
Evans Investment
dispose
upon
of cases
their substantial
poration.
merits. Holzeman &
Henneberry,
Co. v.
Having heretofore concluded that the evi-
428,
11
497;
83
Idaho
P.
Buck,
Pittock v.
by appellants
dence offered
insufficient
47,
212;
Idaho
96 P.
Crane
City
v.
of
their
agree-
establish
contention that an oral
Harrison,
167,
892;
34 Idaho
200 P.
John
title
ment
transfer
to the
in issue
son Noland,
642,
v.
Idaho
“That assertion between this al themselves. The plaintiff legation and the appellants’ defendant referred to complaint to which in paragraph complaint VI of we have did referred of compelling force specifically describe the appellants. contention of described, hereinabove parties as both Appellants, wife, Swanson and at the time mistaken in that said belief this action commenced, was claimed some warehouse stood on leased property of dispute interest in area under and Oregon Short Line Railroad Com- of an (Ex. A) virtue entered into ”* * * entirety, in its pany (Italics by appellant Hubbard and her now de- supplied) ceased husband as vendors and appellants, allegation ap- same was wife, purchasers contained in Swanson and dated complaint pellants’ September amended only 1951. The property de- by appellants’ attorney (Ex. and the A) verified fore- scribed which is in any re- portion going spect underscored related thereafter in issue is de- *9 pany, Railroad Com- excerpt Union Pacific from said following scribed the Ware- pany, Lessor, and Michaud agreement. Lessee, being Company, house & Grain parties part in con- “The first Com- of said railroad ACE No. 9132 agree- sideration of the covenants pany, together the warehouse parties part ments on the of the said building, service combined store and contained, part, the hereinafter second out building station and two small convey unto agree (cid:127)further to sell buildings equipment in said ware- part, and parties the said second the engine, bulker, consisting gas house buy all of parties agree the second piler trucks.” and four hand Pow- that certain lease-hold situate following excerpt of the testi- Idaho, particularly described County, der being mony appellant follows: while Hubbard interrogated relative instruments to said “Beginning point at a which is 30.0 B) A(Ex. and Ex. : perpendicularly distance North- feet westerly line the Potvin, continuing:) from the center “Q. (Mr. Oregon Line Exhibit B say track of the Short double you do Since Railroad, Engineer’s the at Station of actual referring to the you are whether lease-hold, or land, Line 1176677.0 Oregon Short Railroad Northeasterly land, meas- which 1151.1 feet which in the possessory interest you from in- along said center line drew and when you ured mean did Line Sec- with West B tersection ? Exhibit signed that South, Township Range tion signed one to- you “The Court: Meridian; parallel thence Boise East day. of double track feet center line 280.0 thought it had I “The Witness: Southwesterly; right angles thence at Honor, with the land in con- do, your northwesterly; right thence feet at 26.5 is, immediately troversy, under the northeasterly; feet thence angles 280.0 warehouse, those sixteen feet under angles southeasterly 26.5 feet right at the warehouse. beginning, as described in point is Mr. Potvin’s Oregon “The Court: This Short Line Rail- between lease can make it question, maybe we clear- Hubbard, and W. road — 14, 1926, agreement, Exhibit A leav- In the er : December dated subse- thereof, of that Section out some ing Extensions quent latest of property in 29, 1949, Section 15 as August refers which between as a lease- agreement, Oregon Short Line Railroad Com- lease-hold —or ; ownership) any mani- nor does it disclose full he less than hold, would part No.,— festation those who located on the Exhibit is what title. That warehouse, Now, at the time of its location calls it. agreement what issue, claimed to- you the little when which it title to whether it say there day you don’t located. you selling to was understood *10 title, or whether the fee Mr. Swanson cases, nearly Appellants cite a number of lease-hold, you only him selling boundary all fence line of which involve your, if trying get Potvin and Mr. issues, they support contend their you when know, had
you
thought that
position. They rely
heavily upon
most
September of
you
sold it to him back
case of Beneficial Life Insurance Com-
Now,
you answer that?
can
Wakamatsu,
pany
v.
P.2d
830, 835, wherein this Court said:
I
I can answer
“The Witness:
think
planned to sell
by saying
that we
long
recog-
“From the
existence
I
everything
had.
Mr.
we
Swanson
original
nition of
fence as the
think,—
don’t
boundary,
and the want of
evidence
nothing
than
“The
But
more
Court:
matter
as to the
of its
circumstances
you
what
had?
location,
presumes
the law
original
originally
it was
located as a
had.”
“The
what we
Witness: Just
boundary by agreement because of un-
weigh such
The trial court was entitled to
dispute
certainty or
as to the true line.”
that the
evidence and if the court believed
“Moreover,
long
pos-
this
continued
only property
by the Hubbards
owned
by
prede-
defendants and their
session
(which
related to this
manner
.
cessors, coupled
complete
with their
case)
in the
fact described
open
and visible
only
acts of
1, 1951,
dominion
of December
and consisted of
ownership, gives rise to
presump-
we
building,
a lease hold and the warehouse
possession was
that their
tion
adverse.”
liberty
are
such evi-
not at
to re-evaluate
in said above cited case
The facts involved
dence.
follows:
briefly
the Court as
are
stated
appel-
not disclose that
record does
are, without substan-
the facts
“So
predecessors
or their
lants
conflict,
north
that the
ownership
tial
any declaration or averment of
continuously en-
fence was
original
(when
between 1926
of said
occupied,
and farmed
closed,
cultivated
thereon) and 1953
was located
warehouse
predec.es-
and their
by the defendants
inquiry
Idaho made
the State of
(when
occupant in
recovering
an
it from
forty years before
sors
more than
During
possession
claiming owner-
adverse
this action was commenced.
ship through
operation of the stat-
acts
these
all
that time
exercised
limitation,
possession must
area
ute of
disputed
of ownership over the
pre-
been,
period
have
for the whole
visibly.”
openly and
actual, open,
visi-
statute,
scribed
in-
only
.Not
had
in issue been
ble, notorious, continuous, and hostile
closed, occupied,
and farmed
cultivated
to the true owner’s title and to the
in in-
predecessors
the defendants and their
”
at large.’
world
terest,
forty years,
defendant’s
but
‡
^
‡
‡
predecessors
had claimed
interest
“ ‘Hence,
open
and notorious oc-
the Court
In
connection
fence.
cupation with
intent is a neces-
hostile
said:
sary
posses-
constituent of an adverse
part
disputed
“As
area
sion.
intent without
Neither
hostile
forties,
across
west two
being ad-
occupation
such occupation, nor such
vised that McKenna
claiming
intent,
without hostile
is sufficient.’
fence,
the claim of McKenna and
Henry,
supra; Hogan
Pleasants
v.
adverse,
his successors became and was
supra.
Blakney, supra;
Lawyer,
Salvis
regardless
had
of what it
been before'
*11
that time.”
rela-
Some contention is made that taxes
by appellants
cited
other cases
are like-
controversy
in
were not
tive to the area
distinguishable.
wise
mad&
paid by appellants. The
court
trial
question
we
specific finding
no
on that
proof showing
no
there is
Where
controlling.
consider it
do not
by
occupation
accompanied
that actual
appellants’
to
not find merit
We also do
intention,
claim,
an
inconsistent with
or
any
estoppel is in
rule of
that the
contention
owner, an
adverse claim
in this
applicable
case.
manner
occupation
cannot be al
such
based
712,
Kollmeyer, 31 Idaho
Bower v.
lowed.
that the record
is our view
It
P. 964.
175
satisfactory
competent or
not contain
does
respect
following language
this
In
that
a contention
supporting
evidence
approved by
repeatedly
this Court
been
has
initiated
in issue was
the land
occupation of
728,
139
though con
that
Paul Evans was the owner of
competent,
substantial
J.
placed
may
land at the time the warehouse
evidence,
findings
flicting
such
13-219;
on the
Lar
and that
statement
appeal.
disturbed
I.C.
775;
presence,
242,
admission
him or in his
Lindsay,
P.2d
made
son v.
80 Idaho
327
79, 326
interest
be admissible”.
Shellhorn,
would
Shellhorn
Idaho
v.
80
469,
support
appellants’
In
contention that
64;
Martin,
P.2d
Idaho
Summers v.
77
testimony
excluded
was admissible under
KNUDSON, Justice. repeatedly warehouse. This Court has stat petition A rehearing has been filed ed equitable the essential elements of an es this case which it is contended that the toppel. Seger, See Cahoon v. 31 Idaho opinion filed is erroneous in particu- two 441; 101, Mabey, P. Sullivan lars : 595, 233; Gray, Idaho 246 P. Loomis v. 529; Berg 60 Idaho 90 P.2d Little v.
First, holding the trial court Co., 833; dahl Oil P.2d properly excluded the offered testimony of Belknap, Edwards v. 66 Idaho 166 P. M. Bistline witness F. relative to some Charpentier Welch, 2d 451. In purportedly statement a Mr. Davis 814, 817, Court, P.2d while Paul Evans to the effect that L.L. J. estoppel, discussing quoted approval Evans) (deceased father of Evans Paul *12 follows: stated: “That they put had if a warehouse ‘“ up they application there he would see that had all “For its there must be necessary deception they needed for it”. intended some conduct Appellants claim party error “For of the reason or declarations be es-
topped or on his gross negligence belonging (now fact that the warehouse part as upon portion to amount to constructive appellants) stood ’ ” fraud.” area controversy approximately prior years conveyed to the date it was “ equi- ‘The essential elements of respondent, Idaho, State of the record does party estoppel table as related to appellants disclose that prede- or their n estopped which (1) are: Conduct cessors in any interest at during representation amounts to a or false period any claimed title occupied to or or, facts, at concealment of material portion of said area with hostile In intent. convey least, is calculated to judgment our wholly the record is wanting other- impression are that the facts in the essential estoppel. elements of with, than, those wise and inconsistent petition rehearing is denied. attempts party subsequently which the assert; least intention, at (2) TAYLOR, J.,C. and SMITH and Mc- expectation, conduct shall that such FADDEN, JJ., and MARTIN, District upon by party; (3) acted the other Judge, concur. constructive, of
knowledge, actual or party
the real facts. As related to the
claiming estoppel, they (1) are:
Lack knowledge and of means
knowledge of the truth as to the facts
question;
(2)
reliance
the con-
party estopped;
duct of
(3)
edge of the Norwithstanding real facts.