Bingham County Agricultural Ass'n v. Rogers

• Decision Date: 05 February 1900
• Citation: 7 Idaho 63,59 P. 931
• Parties: BINGHAM COUNTY AGRICULTURAL ASSOCIATION v. ROGERS
• Court: Idaho Supreme Court

59 P. 931

7 Idaho 63

BINGHAM COUNTY AGRICULTURAL ASSOCIATION v. ROGERS

Supreme Court of Idaho

February 5, 1900

NEW TRIAL-ORDER GRANTING.-On an appeal from an order of the district court granting a new trial, where the record shows manifest error, the order will be affirmed.

IMPROVEMENTS ON PUBLIC LAND-REMOVAL OF.-Where a person has entered on public land in good faith, under what he believes to be a valid entry, and has made valuable improvements thereon, he is entitled, upon his entry being defeated, to remove such improvements, upon reasonable notice, after the title to the land has been finally determined.

FIXTURE HOW DETERMINED.-In determining whether a thing is a fixture or not, the relation of the parties must be considered. Held in this case, that the fence inclosing the land placed there by plaintiffs was not a fixture which the plaintiffs was prohibited from removing.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Order affirmed, and cause remanded, with instructions.

Dietrich & Stevens, for Appellants.

Was it error for the court to grant a new trial because of the alleged defect in the complaint in not stating "that the plaintiffs were the owners or entitled to the possession of the property sued for at the time of the commencement of the actions"? (Schwartz v. Skinner, 47 Cal. 3; Ladson v. Mostowitz, 45 S.C. 388, 23 S.E. 49.) A bare allegation that at the time of the commencement of this action plaintiffs were the owners, or entitled to the possession of the property in question, would, under the circumstances of the case, have been a mere conclusion of law. (Silsby v. Aldridge, 1 Wash. 117, 23 P. 836.) A complaint which alleges that plaintiff was lawfully possessed of certain chattels, that on a certain day defendant wrongfully took them and has ever since unjustly detained them, is sufficient. (Appleby v. Hollands, 8 A.D 375, 40 N.Y.S. 804; Halleck v. Mixer, 16 Cal. 574; Simmons v. Lyons, 55 N.Y. 671; Oleson v Merrill, 20 Wis. 462, 91 Am. Dec. 428.) Inferential allegations are sufficient as against a general demurrer. (Visher v. Smith, 91 Cal. 260, 27 P. 650; Williams v. Ashe, 111 Cal. 180, 43 P. 595.) Where, in an action of detinue, the complaint alleges the wrongful taking of the property, the detention, the demand and damages for wrongfully withholding the same, an objection that it is not sufficient to support a judgment for plaintiff will not be sustained on appeal. (Crews v. Baird, 2 Idaho 103, 6 P. 116.)

N. H. Clark, for Respondent.

When an appeal is taken from an order granting a new trial, the court is not confined to considering the ground on which said order is made, but will review entire record, and will sustain the order granting the new trial if any reason can be found therefor in the record. (Shanklin v. Hall, 100 Cal. 26, 34 P. 636; Kauffman v. Maier, 94 Cal. 269, 29 P. 481.) In a suit to recover personal property the complaint must show the ultimate fact that plaintiff was owner, or entitled to the possession at the time of the commencement of the action, and it is not sufficient to merely aver that he was the owner or entitled to the possession at some period prior to that time. To the same affect are the following cases: Fredericks v. Tracy, 98 Cal. 658, 33 P. 750; Truman v. Young, 121 Cal. 490, 53 P. 1073; Masterson v. Clark (Cal.), 41 P. 796; Affierbach v. McGovern, 79 Cal. 268, 21 P. 837; Alden v. Garver, 13 Iowa 253, 81 Am. Dec. 430.

HUSTON, C. J. Quarles and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

This is an appeal from an order of the district court, granting a new trial. The complaint purports to be in an action of claim and delivery, and avers ownership of the property sought to be recovered in the plaintiffs on the sixth day of May, 1896 avers value of the property on the sixth day of May, 1896; avers the taking of possession of the property by the defendant on the same date, and his continued holding since that time; avers, generally, that plaintiffs have repeatedly demanded possession. The action was commenced on September 7, 1898. We have earnestly and studiously sought for some authority upon which we could sustain this complaint, but we have failed to do so. The purpose and intention of the code, as we understand it, was to simplify the theretofore complicated and abstruse system of pleadings under the common law; but we do not understand it was intended to obliterate, root and branch,...