Barnes v. Davitt, 33745

• Decision Date: 17 June 1955
• Docket Number: No. 33745,33745
• Citation: 160 Neb. 595,71 N.W.2d 107
• Parties: George O. BARNES and Louis V. Barnes, Appellees, v. John L. DAVITT, Appellant.
• Court: Nebraska Supreme Court

Page 107

71 N.W.2d 107

160 Neb. 595

George O. BARNES and Louis V. Barnes, Appellees, v. John L. DAVITT, Appellant.

No. 33745.

Supreme Court of Nebraska.

June 17, 1955.

Syllabus by the Court

1. When the facts pertaining to the relationship of the persons involved are in dispute, or more than one inference can be drawn therefrom, the question is for the jury.

2. It is not the province of this court in reviewing the record in an action at law to resolve conflicts in or weigh the evidence.

3. Findings of a court in a law action in which a jury is waived have the effect of the verdict of a jury, and judgment thereon will not be disturbed unless clearly wrong.

Thomas W. Lanign, Grand Island, for appellant.

Lanigan & Ondracek, Harold E. Connors, Greeley, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiffs, George O. Barnes and Louis V. Barnes, originally filed this forcible entry and detainer action in the county court of Greeley County on May 11, 1953, against defendant John L. Davitt, seeking restitution of described land owned by plaintiffs in said county. In that court, upon trial to a jury of issues made by plaintiffs' complaint and defendant's plea of not guilty and his special plea hereinafter set forth, the jury returned a verdict finding defendant guilty as charged and judgment was rendered thereon for plaintiffs, costs taxed to defendant. Therefrom defendant appealed to the district court, where the cause was tried to the court, jury waived, upon the issues as made by plaintiffs' complaint filed in the county court and defendant's pleas thereto. At conclusion of all the evidence, the trial court found and adjudged that defendant was guilty as charged, and taxed costs to defendant. Thereafter defendant's motions to vacate the judgment and render judgment for defendant and for a new trial were overruled. Therefore defendant appealed to this court, assigning that the trial court erred in rendering such judgment and overruling his motions. We conclude that the assignments should not be sustained.

Plaintiffs' complaint alleged that they were the owners in fee simple of the described land involved, and that on or about May 3, 1953, defendant unlawfully, forcibly, and without their consent, entered the premises and unlawfully detained possession thereof; and that on May 5, 1953, they duly served upon defendant a written 3-day notice to vacate, which period had fully elapsed, yet defendant continued to unlawfully and forcibly detain possession of the premises. They prayed for restitution and costs.

Thereto defendant filed a plea of not guilty and as a special plea alleged that the described land was enclosed by a fence and had been used by him for pasturage purposes for a number of years under oral lease from the former owner, one Harry J. Rooney; that in February 1951, a rental of $625 cash rent therefor was agreed upon and paid, and defendant held over for the year 1952 and paid the same rent under the February 1951 agreement; that defendant had possession of and used the premises up to the present time and claimed the right to possession for 1953 as a holdover tenant from year to year; that no 6-months' notice to vacate or terminate his tenancy was served upon him as required by law; and that on or about April 16, 1953, he tendered the 1953 rent to Rooney, but it was refused. Defendant further alleged that on or about May 1, 1953, pursuant to custom which he had followed for many years, he lawfully repaired the fences and wells, and on or about May 3, 1953, he peacefully and lawfully ran some of his livestock on the land and is now in lawful possession thereof, using the same for pasturage purposes. He prayed for dismissal of plaintiffs' complaint. We have summarized defendant's pleas at length becuase, as hereinafter observed, his own testimony as well as the evidence adduced by plaintiffs, is in conflict therewith in several material respects.

In Borcherding v. Eklund, 156 Neb. 196, 55 N.W.2d 643, 645, this court held: 'In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.'

In Curry v. Bruns, 136 Neb. 74, 285 N.W. 88, we held: 'When the facts pertaining to the relationship of the persons involved are in dispute, or more than one inference can be drawn therefrom, the question is for the jury.'

As held in Snyder v. Farmers Irr. Dist., 157 Neb. 771, 61 N.W.2d 557, 559: 'It is not the province of this court in reviewing the record in an action at law to resolve conflicts in or weigh the evidence.' Further, in Scottsbluff Nat. Bank v. Blue J Feeds, Inc., 156 Neb. 65, 54 N.W.2d 392, 394, we held: 'Findings of a court in a law action in which a jury is waived have the effect of the verdict of a jury, and judgment thereon will not be disturbed unless clearly wrong.'

Section 27-1401, R.R.S.1943, provides a remedy 'as well against those who make unlawful and forcible entry into lands and tenements, and detain the same, as against those who, having a lawful and peaceable entry into lands or tenements, unlawfully and by force hold the same; * * *.'

In Critchfield v. Remaley, 21 Neb. 178, 31 N.W. 687, this court held: 'Where lands are leased to a tenant for one year for a stipulated rent reserved, and, after the expiration of the lease, the tenant, without further contract, remains in possession, and is recognized as a tenant by the landlord, by the receipt of rent for another year, this will create a tenancy from year to year.

'In such case the tenancy can only be terminated by the agreement of the parties, express or implied, or by notice given six calendar months, ending with the period of the year at which the tenancy commenced.' See, also, Farley v. McKeegan, 48 Neb. 237, 67 N.W. 161.

Also, in Pusey v. Presbyterian Hospital, 70 Neb. 353, 97 N.W. 475, 113 Am.St.Rep. 788, this court held: 'A tenancy from year to year will not be created against the contrary intention of both parties, landlord as well as tenant, and the payment of rent is merely an evidential fact bearing upon the question of the intent of the parties. Johnson v. Foreman, 40 Ill.App. 456.'

Further, in State v. Cooley, 156 Neb. 330, 56 N.W.2d 129, 133, we said: "It is generally held that if, after the expiration of a lease, the tenant pays rent and the landlord accepts the payment, the lease is extended. The extended term is usually said to be from year to year, although it is probable that in most cases it is meant that such a term results when the lease is for a year or for years. It has been generally ruled, however, that there is only a presumption of a tenancy from year to year arising from a holding over and that such presumption, or implication of the law as it is sometimes called, is rebuttable. It is rebuttable by showing that such a tenancy was not the intention of the parties or that they had entered into a contrary agreement.' 32 Am.Jur., Landlord and Tenant, § 940, p. 792.

'In West v. Lungren, 74 Neb. 105, 103 N.W. 1057, we quoted the following from Montgomery v. Willis, 45 Neb. 434, 63 N.W. 794: "Such a tenancy will be presumed where a tenant remains in possession after the expiration of his term, and his tenancy is recognized by the landlord, where no new contract was made. Critchfield v. Remaley, 21 Neb. 178, 31 N.W. 687. This rule is, however, only a rule of presumption, and the presumption is rebutted by proof of a different agreement, or of facts inconsistent with the presumption. Shipman v. Mitchell, 64 Tex. 174; Williamson v. Paxton, 18 Grat., Va., 475; Grant v. White, 42 Mo. 285; Secor v. Pestana, 37 Ill. 525."' See, also, Corcoran v. Leon's, Inc., 126 Neb. 149, 252 N.W. 819.

In Miller v. Maust, 128 Neb. 453, 259 N.W. 181, citing numerous authorities, including Brown v. Feagins, 37 Neb. 256, 55 N.W. 1048, and Tarpenning v. King, 60 Neb. 213, 82 N.W. 621, this court held: 'In an action of forcible entry and detainer, the ground of complaint is that the entry and detention were unlawful and forcible, absolute ownership or a possessory right not being a defense. * * *

'In an action of forcible entry and detainer, the character of the entry and detention is the test of plaintiff's right to recover, where the complaint charges that defendant's possession was obtained and held forcibly.

'One purpose of the act empowering a justice of the peace to determine the issue in an action of forcible entry and detainer is to prevent even rightful owners of realty from taking the law into their own hands and recovering by violence what the remedial powers of a court would grant.'

In the light of the foregoing rules we have examined the record. The material and relevant evidence adduced by plaintiffs may be summarized as follows: One Harry J. Rooney was the owner of 771 acres of sandhill pasture land about 3 miles west of Greeley. He had been the owner thereof since about 1943. From 194...