Botnen v. Eckre
| Decision Date | 06 February 1919 |
| Docket Number | 1915 |
| Court | North Dakota Supreme Court |
From a judgment of the District Court of Richland County, Allen, J defendant appeals.
Affirmed.
Forbes & Lounsbury, for appellant.
"When there is no contract or usage to the contrary the rental paid for land is presumed to be for one year." Comp. Laws 1913, §§ 6092-6096.
"In replevin the value of the property at the time of its taking is the correct and only measure of damages." Comp. Laws 1913, § 7635; Morris, Replevin, p. 193; 34 Cyc. 1570 1571; Cobbey, Replevin, p. 511; Nichols & S. Co. v Paulson, 10 N.D. 440; McLeod v. Capehart, 52 N.W. 381.
W. E Purcell, for respondent.
"In actions at law, unless the sufficiency of the evidence to sustain the findings, verdict, or judgment has been challenged in the lower court, that question cannot be revived in the supreme court." Morris v. Minneapolis, etc. R. Co. 32 N.D. 366; Buchanan v. Occident Elev. Co. 33 N.D. 346.
"It is in equity actions only that the defeated party is entitled to a trial de novo in the supreme court, and it is only in such equitable actions that the supreme court will review the sufficiency of the evidence to sustain the verdict, without appellant making motion for a new trial in the court below." LeClaire v. Wells, 7 S.D. 426, 64 N.W. 519; First Nat. Bank v. Comfort, 4 Dak. 167, 28 N.W. 855; Myers v. Longstaff, 14 S.D. 98, 84 N.W. 233; Hawkins v. Hubbard, 2 S.D. 631, 51 N.W. 774; Hagaman v. Gillis, 9 S.D. 61, 68 N.W. 192; Landis Mach. Co. v. Konantz Saddlery Co. 17 N.D. 310.
"When a law action is tried by the court, the findings of the court have exactly the same weight as the verdict of a jury, and must be given the same weight in the supreme court." Jasper v. Hazen, 4 N.D. 1; Dowagiac Mfg. Co. v. Hellekson, 13 N.D. 257; Ruettle v. Ins. Co. 16 N.D. 546; James River Nat. Bank v. Weber, 19 N.D. 702; State Bank v. Maier, 34 N.D. 259; Novak v. Lovin, 33 N.D. 424.
"The supreme court will not review the evidence in a law action with a view of determining its weight, but only to ascertain whether or not there was sufficient legal evidence to support the verdict or findings." Taylor v. Jones, 3 N.D. 235; Clemens v. Royal Neighbors, 14 N.D. 116; Houghton Imp. Co. v. Vavrowski (N.D.) 125 N.W. 1024; Hall v. N. P. R. Co. 16 N.D. 60; Walklin v. Horswell (S.D.) 13 N.W. 668; Casey v. First Nat. Bank (N.D.) 126 N.W. 1011; Olson v. Day, 23 S.D. 150; Mosteller v. Holborn, 20 S.D. 245; Grand v. Powers Dry Goods Co. 23 S.D. 195; Jackson v. Grand Forks (N.D.) 140 N.W. 718; Seen v. Steffan, 37 N.D. 491; Reed v. Ehr, 36 N.D. 552.
This is an action to recover the possession of 50 tons of hay, or in case a recovery thereof cannot be had, the value thereof, which is alleged to be $ 750. The answer is in effect a general denial. The case was tried to the court without a jury. The court made findings of fact in favor of the plaintiff, and fixed the value of the hay at $ 600. Judgment was entered upon the findings, and defendant appeals.
The evidence shows that the hay involved in this controversy was grown upon land belonging to one Hellestvedt. Some of the land was under cultivation and some of it was hay land. Hellestvedt by written power of attorney authorized one Ulsaker to rent the land. And for many years,--at least from 1905 to 1916, both inclusive,--Ulsaker had rented the land to the defendant, Eckre. A few years ago the defendant was permitted to fence a small portion of the premises. It appears that for every year,--with one, or possibly two, exceptions,--there was a written lease between the parties. The leases were identified upon the trial, but have not been transmitted to this court, so we have no means of knowing their terms. However, from certain statements made during the course of the trial it seems that they were ordinary farm leases, whereby the premises were leased for the farming season of a specified year. It also appears that Eckre was required to pay a certain cash rent for the hay. He was also required to plow back each year certain land which had been plowed when he first leased the premises. Eckre farmed the premises in 1916. And he claims that some time along-in October, 1916, he leased the premises for the farming season of 1917, and hence became entitled to the hay in controversy. The alleged lease was oral.
Defendant's version of the conversation which he claims created the lease is as follows:
He (Ulsaker) asked me if I would get the land plowed that fall, and I told him it was so wet I wasn't going to get any plowing done,--I told him I simply couldn't plow, it was too wet, and then he said it would be in poor shape in the spring if it wasn't plowed in the fall; and I said we can, if the spring is good,--I will plow some of it in the spring, and if it ain't, why I will summer-fallow it; that is all that was said.
Q. What did he say about that?
A. Well, why I think he said, "All right" or something to that effect.
The defendant did not put any of the land into crop in the spring of 1917; nor did he plow any of it either in the fall of 1916 or in the spring of 1917. He did, however, commence to do some plowing about July 20, 1917.
On July 13, 1917, the plaintiff, Botnen, entered into a written "hay" lease with Ulsaker, under the terms of which he became entitled to cut and gather all growing grasses on the premises. Botnen thereafter entered upon the premises and commenced to cut and stack the hay. The defendant, however, interfered, and (to use his own language) "chased him [Botnen] off." After driving plaintiff off the premises, the defendant proceeded to exercise dominion over the premises and appropriated all the hay to his own use.
Defendant claims that under the facts which existed on and prior to July 13, 1917, he (defendant) had become entitled to retain the premises for another year under the provisions of §§ 6092, 6094, 6095, and 6096, Compiled Laws 1913, and that consequently plaintiff's lease was and is invalid. The statutory provisions invoked read:
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