Brooks v. Jensen

• Decision Date: 05 May 1954
• Docket Number: No. 8036,8036
• Citation: 75 Idaho 201,270 P.2d 425
• Parties: BROOKS et ux. v. JENSEN et al.
• Court: Idaho Supreme Court

Page 425

270 P.2d 425

75 Idaho 201

BROOKS et ux. v. JENSEN et al.

No. 8036.

Supreme Court of Idaho.

May 5, 1954.

Robert M. Kerr, Jr., Blackfoot, for appellants.

Donald R. Good, Blackfoot, for Jensens.

Marion J. Callister, Blackfoot, for Callisters and Owens.

GIVENS, Justice.

Respondents, through one Dale, a licensed real estate broker, negotiated in August and September 1951 for the sale to appellants of the:

'N 1/2 NE 1/4, Sec. 8, Tp. 2 So., R. 35 E.B.M., less the following tract: Beginning at the NE corner of the NE 1/4 of said Sec. 8; thence So. 20 rods; thence West 24 rods; thence No. 20 rods; thence East 24 rods to the place of beginning. Also the NW 1/4 NW 1/4, Sec. 9, said Township and Range, less the following tract: Commencing at NW corner of the NW 1/4 of said Sec. 9, and running thence due South on the Section line 400 feet, thence due East at right angles to said last named course, 655 feet, thence due North 400 feet to a point on the North line of said Sec. 9, 655 feet East of the point of beginning, thence West on the North Section line of said Sec. 9, 655 feet to the point of beginning.'

and appurtenant water rights.

A resulting, valid, written contract was consummated September 10, 1951.

The total purchase price was $20,000; $1,500 on delivery of the contract; $3,500 January 5, 1952; balance in annual instalments of $2,000 at five percent interest beginning on or before the 15th of October 1952, and assumption by appellants of a mortgage to the Prudential Life Insurance Company with a balance due thereon of $4,750; respondents to pay taxes for 1951 and appellants for 1952 and on. Time was of the essence with forfeiture clause for default, and retention of payments as liquidated damages. There were other provisions pertinent to a real estate contract, but not involved herein. Possession was to be given November 1, 1951, but was taken October 27.

March 14, 1952 appellants sued for rescission of the contract alleging various false representations, only one of which need be considered, namely, that a fence south of the East forty and a ditch and dyke extending west from the Weggland Lateral in the eastern part of said forty were represented as the south boundary line of the described forty in Section 9; that is, that the ditch and dyke were on the land being bought, when in fact they were not, and the fence throughout its full course was not the correct boundary line, but in part south of a triangular piece of land approximately 330 feet long, of no width at the west end and about 17 feet wide north and south thereof at the east end, and which triangle was not on respondents' land. This strip of land is portrayed on Ptfs. Ex. D, copy of which is set forth herewith:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Appellants alleged and testified they did not know this until about February 20, 1952 when appellants promptly notified respondents of such situation and sought an adjustment, which was refused.

Appellants asked rescission, damages, return of the purchase money paid--the same to be declared a lien upon the land subject to the mortgage of the Prudential Life Insurance Company; that appellants be allowed to remain in possession of the land to secure such repayments, and tendered a quitclaim deed to the premises properly executed and acknowledged March 15, 1952.

The answer and cross-complaint denied any false representations had been made, sought a forfeiture of the contract on the asserted failure of appellants to pay the instalment due January 15, 1952, which by mutual agreement, had been extended to March 15 (Dfts. Ex. 3), demanded payment within twenty-four hours to prevent forfeiture, asked for restitution of, and decree quieting title in respondents to, the property described in the contract, and $2,000 damages for the loss of value and use and occupancy of the property.

Judgment and decree declared a forfeiture and gave respondents all payments made, the land, and $1,232.38 as the rental value from March 30 to December 1, 1952; declared a joint use of the ditch and pump between respondents and Owens; that the triangular piece of land belonged to Callister and Owens, and adjudicated an easement for a roadway, not involved herein.

At the time respondents purchased the land which later was contracted to appellants, one George Jensen (no relation to respondents) owned the land immediately south of the East forty described above and he commenced, but discontinued, the ditch subsequently completed in 1946 and now along the eastern part of the south line of respondents' East forty, and later sold the property to the Callisters, who in turn sold to Owens, now in possession.

By an agreement between respondents and George Jensen, the dyke and ditch were completed by respondents with dirt taken from their land, the center of the ditch being practically on the south line of respondents' land or the northern line of the land owned by Callisters and Owens and the fence was constructed along the south toe of the ditch and dyke.

Respondents contended that full and complete adjudication could not be made without bringing in Callisters and Owens; they were accordingly brought in and by appropriate pleadings, respondents plead and contended they had purchased this triangular strip of land from George Jensen and likewise that they had openly, notoriously and adversely held and used it for more than five years prior to the instant suit. Callisters and Owens denied this and by proper pleadings asserted they owned the disputed land.

It is conceded that Owens, as successor of Callisters and Jensen and through interpurchase of pipe and contribution to construction costs and the price of the pump and pipe by each successive party, had with respondents the joint right to use the pump, pipe and ditch and to alternately carry water therein.

The court specifically found against respondents as to the ownership of this triangular strip of land, thus concluding:

'VII

'That the defendants and cross-complainants Rulon J. Callister and Margaret Callister, his wife, and their successors in interest, John Lincoln Owens and Elva Owens, his wife, are entitled to a Decree of this Court quieting their title in and to the lands described in Findings of Fact Number XXVI, and to the triangular strip of land mentioned and described in Findings of Fact Number XXIV; subject, however, to the perpetual and irrevocable easement in favor of defendants and cross-complainants Victor Jensen and Alverda R. Jensen and their successors in interest in and to the use and enjoyment of a dyke or fill and ditch erected thereon, running in a westerly direction from the west bank of the East Branch of the Weggland Lateral a distance of approximately 300 feet more or less, for one equal half of the time represented by the irrigation season of each year hereafter, with right of ingress and egress for the use and enjoyment thereof and the maintenance and repairs necessarily incidental thereto or in the operation of said pump and auxiliary equipment.'

The land described in Finding of Fact No. XXIV is the ditch, dyke and triangular strip of land, thus described:

'XXIV

'* * *, and that the parties thereupon, by mutual agreement, erected a fence running along the southerly boundary of the triangular tract of land described as follows:

'Beginning at the Northwest corner of the Southwest quarter of the Northwest quarter of Section Nine, Township Two South, Range Thirty-five, East Boise Meridian; thence East 1169 feet, more or less, to the west bank of the Weggland Lateral; thence south 17 feet, more or less, to a large cedar post; thence Northwesterly following said fence line to the point of beginning, containing 143/1000 acres; * * *.'

The court further found that respondents and their agent Dale at no time made any false, misleading or fraudulent statements to the plaintiffs and cross-defendants concerning the said lands and premises mentioned and described in the contract and they did not represent to appellants that the angling fence above described was on the south line of the property mentioned and described in the contract.

The court also found that the construction of the fence (not its location as a boundary), the dyke or ditch thereon, the ownership of the pump (not the ownership of the triangular strip) and the right to the use of such ditch, pump, motor and other equipment, were fully and completely explained to appellants, which appellants in effect admit.

Appellants' numerous assignments of error (all of which we need not and do not consider) sufficiently raise the questions involved, namely, whether or not it was represented to appellants, and they thereby understood, the land they were buying included this triangular strip, and that it was of such material importance to them that when they found it did not, they were entitled to rescission.

We are mindful of the strictures resting on appellants as vendees seeking rescission stated in Nelson v. Hoff, 70 Idaho 354, 218 P.2d 345.

We accept the finding that the land in the triangular strip did not belong to respondents, never had belonged to them and they had not purchased it from George Jensen, nor prescriptively occupied it, which is not appealed from. Nevertheless, as bearing on what respondents contended they owned, what they were selling and what appellants were led to believe and had a reasonable right to believe they were buying, it is pertinent to consider respondents' pleadings and evidence. Respondent Jensen, in connection with the controversy as to the ownership of this triangular strip in bringing the Callisters and Owens into the controversy, alleged in his affidavit:

'That by agreement between George A. Jensen and respondent Jensen, the latter constructed the dyke and ditch and was authorized to install the pump, etc., 'on George A. Jensen's land.'

'That George A. Jensen reserved the right to install an additional pump, etc., on...