Couch v. Welsh

Decision Date13 November 1901
Docket Number1304
Citation66 P. 600,24 Utah 36
CourtUtah Supreme Court
PartiesF. W. COUCH, W. H. CHILD, EUGENE PEYTON and J. H. WELDON, Appellants, v. J. WELSH and THE HUNTSMAN COPPER MINING COMPANY, a Corporation, Respondents

Appeal from the Seventh District Court, Grand County.--Hon. Jacob Johnson, Judge.

Action to recover damages for the removal, by the re-respondents, of certain improvements from certain mining claims.


Messrs Frick & Edwards for appellants.

In presenting this case we might rest it alone upon the form of the motion for nonsuit, as under the repeated rulings of this court the motion is entirely wanting in specifying the grounds upon which it is based. It is a mere general statement that the proof fails to show any liability. The motion is too indefinite. White v. Rio Grande W. Ry Co., 22 Utah 138; 61 P. 568; Lewis v. Silver King Min. Co., 22 Utah 51; 61 P. 860; McIntyre v. Ajax Min. Co., 20 Utah 323; 60 P. 552; Wild v. Union Pacific R. Co., 63 P. 886.

It was contended by the respondent mining company, and as we understood the court, it so held, that the parties to said agreement sustained the relation of landlord and tenant in respect to each other, and that the law in respect to fixtures pertaining between landlord and tenant controlled the respective rights of the parties to this case. It was upon this ground, as near as we can determine from the ruling of the court, that the motion for a nonsuit was granted. In other words, the court held, as we understood it, that the relation of the parties was that of landlord and tenant; that the improvements sued for having been placed on the ground by the tenant for its convenience; such improvements are considered in law as mere "trade fixtures" and unless it is shown that such fixtures were of a permanent character or permanently affixed to the soil, the tenant could remove the same. The court thus assumed both elements viz.: That the buildings and track were not affixed to the soil and that the presumption of law was in favor of defendants. Both of these conclusions are erroneous.

In this case the respondent mining company, did not enter upon the property in question as a mere lessee or tenant. The mere fact that the instrument under which possession was taken was called a lease, is of little significance, at all events not controlling. A mere examination of the terms of this instrument discloses that the features distinguishing the relation of landlord and tenant from other relations in respect to the possession of real property, namely, the payment of rent, is wholly absent. The mining company did not agree to pay any rent, did not pay any, and could not be dispossessed by the failure to pay any. On the other hand the object to purchase; the right of becoming the legal owner on payment of the purchase price, fixed and agreed upon, is beyond question. The "royalty" provided for, if paid, was to be applied upon the purchase price. The respondent, mining company, went into possession thus under an option or executory agreement of purchase. A deed to the fee was placed in escrow under the terms of the agreement, which deed was to be delivered upon payment of the stipulated purchase price. This purchase price might be obtained from "royalties" alone, for it was specifically provided in the agreement, that when the "royalties" amounted to the sum of the several payments to be made as purchase price, then the deed was to be delivered forthwith. The respondent, mining company, must thus be held to have gone into possession of the property, with the intention of becoming the owner thereof; it must also be held that it made the improvements with such intention. The presumption of law thus is that the improvements placed upon the premises were permanent, and the burden is upon respondent to rebut this presumption. Upon this proposition the law is both clear and explicit. 2 Devlin on Deeds, sec. 1222; Washburn on Real Prop. (4 Ed.), top p. 6; Hinkley v. Black, 70 Me. 473; s. c. 35 Am. St. Rep. 346; Pomeroy v. Bell (Cal.), 50 P. 683; 13 Am. and Eng. Ency. Law (2 Ed.), 672.

George L. Nye, Esq., for respondents.

Was the motion for a nonsuit too indefinite to be considered by the trial court under the numerous rulings of this court and the settled law on such motions?

Appellants rely upon the cases of White v. Rio Grande Western Ry. Co., 22 Utah 139, 61 P. 568; Lewis v. Silver King Co., 22 Utah 51, 61 P. 860; McIntyre v. Ajax Co., 20 Utah 323, 60 P. 552; Wild v. U. P. Ry. Co., 63 P. 886. With these cases and the principle therein laid down by this court as governing the essentials of a motion for a nonsuit, we have absolutely no controversy, but we insist that the motion for a nonsuit, in the case at bar, comes squarely within the rule laid down in the above mentioned cases.

In order that the motion may be fully before us for consideration we reprint it at length:

"We move the court at this time for a nonsuit for both parties defendant, and I desire to make the motion for the defendants separately, they having answered separately in this case, upon the ground that there has been an utter failure of proof on the part of the plaintiffs of any liability on the part of either defendant, and upon the ground that there has been no contract shown of such a character as would require the defendant, the Huntsman company, to leave improvements upon the premises. That there has been nothing shown against the defendant, Welsh, save only the admissions which have gone in here to the effect that he purchased from the defendant, Huntsman Copper Mining Company, for a valuable consideration, and after he purchased he moved certain property."

This court will note by the amended complaint of plaintiffs' on which this case was tried, that plaintiffs below and appellants here, brought this action as in the nature of an action for waste under the statute, and prayed for triple damages "as by the statutes provided." Such action necessarily presupposes a tenancy, a reversionary right in the plaintiffs and a lease, under the terms of which, defendants would not be entitled to remove improvements placed upon the premises by them. In contemplation of these matters, defendants made their motion for a nonsuit at the close of plaintiffs' testimony, and in the language of this court in Lewis v. Silver King Mining Company, supra, the defendants "placed their finger on the exact point of their objection," namely, that there had been no contract shown of such a character as would require the defendant, the Huntsman company, to leave improvements upon the premises; and the defendant, Welsh, placed his finger upon his point made in the motion, that there had been nothing shown against him save that he purchased from the defendant company certain property and thereafter moved it.

Our motion for a nonsuit, on the part of the defendant company and on the part of the defendant, Welsh, went to the very meat of the litigation. It pointed out the exact point of the objection of the Huntsman company, namely, that the contract under which it was in possession, and the only contract up to that time shown, was not such a contract as required it to leave improvements upon the premises. It then became a question of the construction of the contract under which the Huntsman company held posession. There could be no misunderstanding on the part of either the court or the appellants, of the point made by the respondent, Huntsman company, upon that motion. It was the insufficiency of the only contract shown up to that time, and the insufficiency of that contract, in the particular of requiring the defendant, Huntsman company, to leave improvements erected by it upon the premises at the end of its term.

Was the court powerless to dispose of the cause upon the merits after granting a nonsuit?

We contend that the court did not err in directing a verdict or in receiving and filing the same, and we further contend that the judgment rendered by the court was not a judgment upon the merits. This very matter is elaborately discussed in 2 Thompson on Trials, section 2267 et seq., where it is said "an order of nonsuit, or a peremptory instruction given in compliance with such a motion, does not undertake to decide any question of fact, but simply pronounces the law arising upon the evidence, admitting the same to be true." Harris v. Woody, 9 Mo. 113-116.

The direction of a verdict for defendants was nothing more than any other way of granting the nonsuit on the motion. It has been repeatedly held that a motion to direct a verdict for the defendants is the same in substance and effect as a motion for a nonsuit. McKay v. Montana Union R. Co., 13 Mont. 15, 31 P. 999; Creek v. McManus, 13 Mont. 152, 32 P. 675; Wombough v. Cooper, 2 Hun. (N.Y.) 428; Lomer v. Meeker, 25 N.Y. 361; Appleby v. Astor F. Ins. Co., 54 N.Y. 253; Gerding v. Haskin, 141 N.Y. 514; 6 Ency. of P. & P., 694.

Had the appellants made out a prima facie case?

This question is really divisible into two subordinate questions: (a) Did the relation of landlord and tenant exist? (b) Under the terms of the contract by which the Huntsman company obtained possession, could they remove the buildings? We must answer yes to both questions.

One thing insisted on by appellants in their claim that the relation of parties was that of vendor and vendee and not that of landlord and tenant, is that the instrument contains no provision for the payment of rent. Let us examine the instrument itself. The lessees, the predecessors in interest of the Huntsman company, agree to commence mining ore and developing the leased premises not later than a certain day and to continuously prosecute the work in a good and miner-like manner and do ninety shifts of work each...

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7 cases
  • Smalley v. Rio Grande Western Ry. Co.
    • United States
    • Utah Supreme Court
    • November 7, 1908
    ...can have no greater effect than the granting of a motion of nonsuit. Some language used by this court in the case of Couch v. Welsh and Mfg. Co., 24 Utah 36, 66 P. 600, seems to lend some support to such a contention. In case, at the close of plaintiff's evidence, a motion for nonsuit was m......
  • Mitchell v. Jensen
    • United States
    • Utah Supreme Court
    • June 6, 1905
    ...even a scintilla of evidence. It follows, then, as of course, that defendants in this case was entitled to a judgment of nonsuit. (Couch v. Welch, 24 Utah 36; v. R. Co., 4 Utah 206; Trihay v. M. Co., 4 Utah 464; Butte v. Pleasant V. Coal Co., 14 Utah 282.) The question then is, were their a......
  • Milburn By-Products Coal Co. v. Eagle Land Co.
    • United States
    • West Virginia Supreme Court
    • June 19, 1956
    ...of renting to employees were held to be removable trade fixtures. Conrad v. Saginaw Min. Co., 54 Mich. 249, 20 N.W. 39; Couch v. Welsh, 24 Utah 36, 66 P. 600. See also Middleton v. Alabama Power Co., 196 Ala. 1, 71 So. 461; and MacArthur Bros. Co. v. Middleton, 200 Ala. 147, 75 So. 895. Whi......
  • Midwest Fuel & Timber Co. v. West
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 24, 1939
    ...such expiration, provided the premises are not injured and are left in as good condition as they were when he received them. Couch v. Welsh, 24 Utah 36, 66 P. 600; State ex rel. Hanson Storage Co. v. Bodden, 166 Wis. 219, 164 N.W. 1009; Durband v. Noble, 182 Iowa 1271, 166 N.W. 581; Conway ......
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