Van Bibber v. Williamson

• Decision Date: 01 March 1889
• Citation: 37 F. 756
• Parties: VAN BIBBER et al. v. WILLIAMSON et al. MORRIS et al. v. SAME. JONES et al. v. SAME. McARTHUR et al. v. SAME. McARTHUR v. SAME.
• Court: U.S. District Court — Southern District of Ohio

37 F. 756

VAN BIBBER et al. v. WILLIAMSON et al. MORRIS et al. v. SAME. JONES et al. v. SAME. McARTHUR et al. v. SAME. McARTHUR v. SAME.

United States Circuit Court, S.D. Ohio, Western Division.

March 1, 1889

King Thompson & Maxwell, for plaintiffs.

R. A Harrison, F. C. Goode, and A. H. Gillett, for defendants.

JACKSON J.

Consolidated causes pending on exceptions to the report of special master filed herein January 2, 1889, upon the subject of lasting and valuable improvements, which defendants have placed upon the lands or several tracts recovered by plaintiffs.

Aside from certain clerical errors or mistakes in the commissioners' report, which counsel at the hearing agreed should be corrected, the exceptions taken by the several defendants to the report relate chiefly to alleged excessive charges of rent against them respectively, and the failure to allow them larger amounts for improvements. The plaintiffs' exceptions relate mainly to the allowance made defendants for clearing lands, for fencing, wells, draining or ditches, and fruit trees. These exceptions on the part of plaintiffs and defendants are too numerous to notice and comment upon in detail. After a careful examination of the report, in connection with the evidence taken before and submitted by the commissioners, the court is of the opinion, and so holds, that the exceptions filed by the several defendants are not well taken, and should be disallowed.

The allowances made defendants by the report for improvements and plaintiffs' exceptions thereto, present questions of more difficulty. The court gave no special direction as to what improvements should be allowed for, or as to the time or mode of making the valuation thereof. In rendering its judgment the court held that the defendants in these actions at law were entitled to the benefits conferred by the law of Ohio upon occupying claimants, and, in conformity with the Ohio statutes on the subject, ^[1] directed 'that a jury of twelve men be selected, as provided by law for the selection of juries, to try causes in this court, to whom shall be referred to ascertain and report to this court, upon all matters referable to a jury, under the occupying claimant's law of this state; rents, taxes, and assessments only excepted, '-- said rents, taxes, and assessments having by consent of parties been specially referred to the clerk of this court for ascertainment and report. Instead of proceeding by jury to ascertain the character and value of the improvements to be allowed defendants respectively, the parties, by agreement, selected certain special commissioners to perform said functions. These specially selected commissioners, after making partition of the several tracts, as to which there is no complaint on either side, state, in reference to lasting and valuable improvements, that they have experienced much difficulty in arriving at satisfactory conclusions as to the character and quality of the improvements proper to be included in this estimate; that this difficulty arose from the absence of specific instructions on that subject in the decree 'and the vague and somewhat contradictory nature of the decision of our state courts;' and that the difficulty as to the quality of the improvements grows out of the lapse of time since the date of bringing the suits, that date being fixed as the time at which the value of such improvements were to be estimated. The commissioners were certainly entitled to more definite instructions than were given by the court, and such as the court would have given the jury had one been selected as contemplated by the order directing the selection of a jury to pass upon the matters involved. It is hardly to be supposed that the occupying claimants' law of the state contemplated action and finding by a jury on the subject of improvements of a lasting and valuable character, according to their own ideas, without direction and instruction from the court. The commissioners have very properly, therefore, called attention to the difficulties under which they labored in making their investigations; and they could with propriety have called upon the court for instructions on the matters referred to them, before proceeding without directions. Neither the report of the commissioners, nor the evidence produced before them, shows the value of the improvements made by defendants at the date plaintiffs commenced their actions herein, viz., April 18, 1879. The evidence and the report undertake to state simply what the improvements originally cost defendants. What additional or enhanced value those improvements gave to the land recovered by plaintiffs at the date of commencing those suits, nowhere appears. It is argued by counsel for defendants that certain Ohio decisions, to which the attention of the court is called, sustain the proposition that the occupying claimant is entitled to an allowance on the basis of what the improvements cost him, rather than the enhanced value such improvements have given to the property...