First National Realty & Loan Company v. Mason
| Decision Date | 21 December 1914 |
| Parties | FIRST NATIONAL REALTY & LOAN COMPANY, a Corporation, and JAMES L. BALLARD, Respondents, v. ADOLPHUS O. MASON, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Nodaway Circuit Court.--Hon. Wm. C. Ellison, Judge.
Judgment affirmed.
W. R Sawyers and Cook, Cummins & Dawson for appellant.
Shinabarger Blagg & Ellison for respondents.
--Plaintiffs, as the owners of a 221 acre farm, sued for waste committed thereon by defendant while he was a tenant under a lease for a term of years. The waste was alleged to have been wantonly committed.
Section 7913, Revised Statutes 1909, subjects any tenant for life or years to a civil action for waste of anything belonging to the tenement so held, without special license in writing so to do. Section 7920, Revised Statutes 1909, authorizes a judgment for treble damages if the jury find the waste was wantonly committed. The jury returned a verdict for $ 300 but did not state in their verdict that the waste was wantonly done, and hence judgment was rendered for the $ 300 without trebling the damages.
The errors complained of are five in number, but they all relate to the same question and are but different methods of preserving and presenting that question for review on appeal. Said question is, what is the true measure of damages to be followed under the petition? The trial court allowed plaintiffs to show the decrease in value of the farm caused by the waste. Defendant claims that, under the allegations of the petition, this was not permissible, but that the value of the buildings and fences removed was the only measure of recovery. We do not understand defendant as denying that, in an action to recover damages for waste, the measure of such damages is the extent of the injury to plaintiffs' particular estate and that this is ordinarily the extent to which the value of the land is diminished. This is the true measure of damages in such cases. [30 Am. & Eng. Ency. of Law (2 Ed.), 301.] But defendant's position is that the petition does not present an action for waste but only one for damages for the destruction and removal of certain buildings and fences the specific value of each of which was alleged, and, therefore, the measure of damages is the value of the things destroyed and taken away. The question, therefore, resolves itself into one of pleading.
The petition alleges that on the 28th day of February, 1912, the defendant was the owner of a farm of 221 acres, specifically describing it, and on that day conveyed it to plaintiffs by warranty deeds which were duly recorded; that plaintiffs thereupon became and are now the owners of the land in fee simple; that afterwards they executed a written lease to defendant whereby they let the said farm to him for a period of three years from March 1, 1912; that thereafter at different times defendant, being then a tenant on said land, committed waste thereon after he had aliened it as aforesaid, and while he remained in possession thereof as aforesaid, in this, that he removed a certain barn, and certain frame sheds, and a house, and certain barbed wire and woven wire fences and also valuable timber standing and growing on said land; that said buildings, fences and timber so removed were the property of plaintiffs, and defendant had no interest therein of any kind or character; that said acts of waste were wantonly committed by defendant; wherefore, plaintiffs allege they were damaged in the sum of $ 542.50, and, inasmuch as said waste was wantonly committed as aforesaid, they prayed for treble damages and for costs. The petition specifically described the barn, sheds, house, and fences, standing on said farm and alleged to have been removed, and alleged the value of each to be a certain amount therein specified. It is this feature of the petition which causes defendant to insist that the suit is one in conversion for the value of the removed pieces of property.
We do not think that merely because the petition annexed a specified value to...
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Lustig v. U. M. C. Industries, Inc., 40391
...for waste is the difference in value of the freehold estate or inheritance before and after the waste, First National Realty & Loan Co. v. Mason, 185 Mo.App. 37, 171 S.W. 971, 972 (1914), and contends that it was error to give MAI 4.01 in this case. We agree. When the only damage is damage ......
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Frey v. Huffstutler, 14922
...not a very precise term, the definitions used by our courts encompass the demolition of a building. First Nat. Realty & Loan Co. v. Mason, 185 Mo.App. 37, 40-41, 171 S.W. 971, 972 (1914); Champ Spring Co. v. B. Roth Tool Co., 103 Mo.App. 103, 108, 77 S.W. 344, 345 (1903). The trial court fo......
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