Croasdale v. Butell

• Decision Date: 05 March 1955
• Docket Number: No. 39603,39603
• Citation: 49 A.L.R.2d 1112,177 Kan. 487,280 P.2d 593
• Parties: , 49 A.L.R.2d 1112 Rosa L. CROASDALE, Appellee, v. C. B. BUTELL and Erwin Schoepflin, individually and as copartners doing business as Osage Farm, Appellants.
• Court: Kansas Supreme Court

Page 593

280 P.2d 593

177 Kan. 487, 49 A.L.R.2d 1112

Rosa L. CROASDALE, Appellee, v. C. B. BUTELL and Erwin Schoepflin, individually and as copartners doing business as Osage Farm, Appellants.

No. 39603.

Supreme Court of Kansas.

March 5, 1955.

Syllabus by the Court.

The record in an action by the owner of a life estate in real estate to recover treble damages, pursuant to G.S.1949, 21-2435, from the two persons named as defendants in the title of the action, for the unauthorized cutting and conversion of grass on the involved real property examined, and it is held, the trial court did not err (1) in holding (a) the plaintiff as the owner of a life estate interest in such real estate had legal capacity to maintain the action and (b) the petition stated a cause of action for relief under the provisions of the statute heretofore mentioned, or (2) in overruling separate demurrers to the petition, based on grounds set forth and described at length in the opinion.

John J. Riling, Lawrence, was on the briefs for appellants.

Willard B. Rogers, Joseph H. Foth, and J. Richard Foth, Topeka, were on the briefs for appellee.

PARKER, Justice.

This action was instituted by the plaintiff, who is conceded to have a life estate interest in the real estate involved, to recover treble damages, pursuant to G.S.1949, 21-2435, from the two persons named as defendants, for the unauthorized cutting and converting of grass. Separate demurrers to the petition, each based on grounds (1) plaintiff had no legal capacity to sue and (2) the petition failed to state facts sufficient to constitute a cause of action in favor of plaintiff and against either defendant, were overruled, hence this appeal.

The allegations of the petition, which we pause to note were not attacked by motion and therefore must be liberally construed and given the benefit of all reasonable inferences, are to the effect that plaintiff is the owner of a life estate in certain real property (describing it) and defendants are, or were until sometime in October, 1953, copartners or joint adventurers, doing business as 'Osage Farm'; that on or about August 31, 1951, plaintiff and defendants entered into a written lease whereby plaintiff leased the real property so owned to defendants for a term beginning May 1, 1952, and ending October 15, 1954, for cattle grazing purposes only; that in August or September of 1953 defendant Schoepflin, acting on behalf of the partnership, with the knowledge and consent of his copartner, the defendant Butell, entered upon the pasture land, cut the grass growing thereon, baled it for hay, took possession of such grass, carried it away and converted it to the use and benefit of the partnership, all without right, authorization or permission.

Under other allegations of the petition a copy of the lease was attached to and made a part of such pleading. This instrument, signed by all parties to the action, is of such importance to the appellate issues involved that portions thereof should be quoted at length. Omitting preliminary and concluding formal averments, it reads:

'1. The first party hereby lets and leases to the second party, and the second party hereby rents from the first party, the following described real property in Osage County, Kansas:

(Here follows description.)

for the term beginning May 1st 1952 and ending October 15th 1954, or ending on the date of the death of Rosa L. Croasdale, or on the date of the sale of said land by the present owners of the entire fee simple title, whichever date shall first occur, unless such sale shall occur in the pasture season and in that event this lease terminates on October 15th following the sale.

'2. The second party will pay to the first party at Olivet, Kansas, as rental, the sum of $2550.00, payable as follows: $850.00 on or before September 1st 1951, receipt of which is acknowledged by the said Rosa L. Croasdale, $850.00 prior to removal of cattle from the pasture in the 1953 grazing season and $850.00 prior to removal of the cattle from the pasture in the 1954 grazing season; provided, however, in the event this lease is terminated by the death of Rosa L. Croasdale, or by sale of the land, all rent not earned at the time of such termination of the lease shall be canceled and the second party shall only be obligated to pay earned rental pro rata to the date of termination, computed on the basis of grazing time elapsed.

'3. The grazing load on the pasture shall not exceed 75 head of yearling cattle, or equivalent. The pasture shall be used for grazing purposes, and only between May 1st and October 15th.

'4. The first party will furnish all necessary materials for the repair of fences, and the second party will furnish all labor necessary to keep the same in repair.

'5. The second party has inspected the water facilities, which are satisfactory in present condition, the second party will keep the water facilities in their present reasonable good condition of repair, and the parties understand the first party is under no obligation to furnish water or additional water facilities.' (Emphasis supplied.)

Following argument on the demurrers the trial court in a well-reasoned and exhaustive memorandum decision overruled such demurrers in their entirety, stating in substance with respect to the second ground thereof that when all its provisions were considered and read together the lease made it clear that what the parties intended to do under its terms was to limit the use of the land to the pasturing of livestock.

The demurrers in this case are identical in form and substance. The same holds true of arguments advanced by the parties in their briefs with respect to the rulings thereon. For that reason issues will be disposed of as if one demurrer were involved.

The first claim of error advanced by appellants is that the trial court erred in holding appellee, as the owner of a life estate in the involved real estate, had legal capacity to maintain the action for treble damages under the provisions of G.S.1949, 21-2435, which for all purposes here pertinent reads:

'If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament, or any timber, rails or wood standing, being or growing on the land of any other person; * * * or cut down or carry away grass, grain corn, flax or hemp in which he has no interest or right, standing, lying or being on land not his own; * * * the party so offending shall pay to the party injured treble the value of the thing so * * * carried away, * * *.'

The principal argument advanced by appellants on the point now under consideration is that an action can only be brought under the foregoing statute by the owner of real estate and not by one who owns a life estate in such property. The short and simple answer to this argument, assuming without deciding that, as appellants contend, the...