Gissel v. State, No. 16107

• Court: Idaho Supreme Court
• Writing for the Court: DONALDSON; BAKES
• Citation: 727 P.2d 1153,111 Idaho 725
• Parties: Lester GISSEL, Conrad Gissel and Dave Lewis, Plaintiffs-Respondents, v. STATE of Idaho, Defendant-Appellant.
• Decision Date: 26 September 1986
• Docket Number: No. 16107

Page 1153

727 P.2d 1153 111 Idaho 725 Lester GISSEL, Conrad Gissel and Dave Lewis, Plaintiffs-Respondents,
v.
STATE of Idaho, Defendant-Appellant. No. 16107. Supreme Court of Idaho. Sept. 26, 1986.
Rehearing Denied Nov. 21, 1986.

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[111 Idaho 726] Jim Jones, Atty. Gen., Boise, and William A. McCurdy, Esq., of Quane, Smith, Howard & Hull, Boise, for defendant-appellant.

Thomas A. Mitchell, Coeur d'Alene, for plaintiffs-respondents.

DONALDSON, Chief Justice.

In 1979, officials from the Idaho Department of Fish & Game observed the respondents Lester and Conrad Gissel and Dave and John Lewis harvesting wild rice on land jointly owned by the state and the National Forest Service. After further observations, the department notified the county prosecutor who obtained a warrant to search Lester Gissel's residence. The search revealed 180 bags of wild rice weighing approximately 50 pounds each which the state seized. David Lewis and Lester and Conrad Gissel were subsequently charged and convicted of trespass. The case against John Lewis, a juvenile, was dismissed. The district court set aside the jury verdict against the respondents, but was reversed on appeal by the Idaho Court of Appeals. State v. Gissel, 105 Idaho 287, 668 P.2d 1018 (Ct.App.1983). On remand, the prosecutor dismissed the charges against the respondents.

Prior to the criminal trial, the respondents' attorney and the county prosecutor stipulated that the wild rice itself need not be entered into evidence and agreed to the sale of the rice in order to keep it from perishing. The rice was sold, although the record is inconsistent as to whether the sale price was $9,000 or $16,000.

On December 24, 1979, respondents filed a Notice of Claim to the wild rice or its proceeds against the State of Idaho. The state denied liability. On February 24, 1981, the respondents filed a complaint against the state alleging the state negligently seized and disposed of the rice and had failed to account to the respondents for the proceeds thereof.

A civil trial before Judge Prather was held on December 18, 1984. The court took judicial notice of the evidence adduced at the criminal trial and heard additional testimony and arguments. On March 8, 1985, the district court issued its Memorandum Opinion in which respondents were awarded one-half of the stipulated value of the rice ($10,500). Judgment was entered and the state's subsequent motion to amend the Memorandum Opinion, which constituted the court's findings of fact and conclusions of law and the judgment, was denied on June 4, 1985. The state now appeals.

The defendant-appellant, State of Idaho, raises two issues on appeal: (1) whether the district court erred in finding a factual basis for a 50/50 division of ownership of the wild rice between the State of Idaho and the United States Forest Service; and (2) whether the district court erred in holding that the plaintiffs-respondents the Gissels, were entitled to recover the proceeds of the sale of the wild rice they harvested from the U.S. Forest Service land.

I

The state argues that the district court's factual finding of a 50/50 division of ownership of the land from which the rice was gathered and, therefore, a 50/50 division of the proceeds of the sale of the rice, is not supported by the facts produced at trial. Factual findings of a trial court "will not be reversed unless the finding is clearly erroneous or not supported by substantial and competent evidence." I.R.C.P. 52(a). Jensen v. Bledsoe, 100 Idaho 84, 593 P.2d 988 (1979); Courtright v. Robertson, 99 Idaho 575, 586 P.2d 265 (1978); Shrives v. Talbot, 91 Idaho 338, 421 P.2d 133 (1966). Evidence produced at trial clearly indicates that the wild rice was gathered from land belonging to both the U.S. Forest Service and the State of Idaho. The Gissels testified that they knew the land where they gathered the rice belonged to the Forest Service and the State. Al Brunner, a former employee of the Department of Fish and Game, who worked in that area and had knowledge of the lands and its ownership, testified that he believed the rice was gathered from Forest Service land and state land in quantities amounting to the 50/50 split. Based on this evidence,

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[111 Idaho 727] the district court concluded that the respective share of ownership was 50/50. The findings of the trial court are not clearly erroneous and are supported by substantial and competent evidence.

The trial court's acceptance of the stipulated valuation of the rice at $21,000 is also supported by substantial and competent testimony. The harvest produced 180 bags of rice, 50 pounds green weight, and when dried the weight was reduced to 25 pounds. The selling price was $5.15 a pound, which totals $23,175. Excluding costs, and other factors, the parties stipulated the value to be $21,000. The record presents no evidence to mistrust the $21,000 amount agreed by the parties. The fact that the amount received from the sale is disputed to be either $9,000 or 16,000 has no bearing upon the valuation of the rice for purposes of this appeal. ¹

The district court correctly held that the Gissels were entitled to recover only the amount of $10,500 attributable to National Forest Service land, since the other $10,500 was gathered from state land and rightfully belonged to the state.

II

The second issue raised on appeal by the state is whether the district court erred in permitting the Gissels to recover from the state the value of the rice attributable to the National Forest Service land.

The district court found that the Gissels are entitled to recover from the state because it unlawfully converted part of the proceeds from the sale of the rice when it refused to account for the amount it received for the rice attributable to the U.S. Forest Service land. Conversion is "any distinct act of dominion wrongfully exerted over another's personal property in denial or inconsistent with his rights therein, such as a tortious taking of another's chattel, or any wrongful exercise ... over another's goods, depriving him of the possession, permanently or for an indefinite time." Klam v. Koppel, 63 Idaho 171, 118 P.2d 729 (1941). Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the rights of another to control it that the actor may justly be required to pay the other the full value of the chattel. Restatement (Second) of Torts, § 222A, (1965). The state's refusal to account for the money received unlawfully interferred with the Gissels' possessory rights.

The state argues that it is not required to account for the proceeds of the sale as the Gissels could never have acquired any possessory right to entitle them to the proceeds. The state correctly points out that "one who steals or converts property to his own use does not thereby acquire title thereto." Stewart v. People, 193 Colo. 399, 566 P.2d 1069 (1977); First National Bank and Trust Company of Lincoln v. Ohio Casualty Insurance Company, 196 Neb. 595, 244 N.W.2d 209 (1976); Northern Insurance Company of New York v. Miller, 129 N.W.2d 28 (Iowa 1964). But these cases are not controlling here. In each of the cited cases, the parties alleging the conversion were the true owners or assignees. Therefore, it was held that the thief or the party who had converted the property to his own use or someone who had acquired property from the thief or converter of the property, could not gain title or retain possession of the property as against the true owner, and in each case the property was returned to the true owner or assignee.

By contrast, in the case at bar, the Gissels do not seek the return of property which rightfully belonged to the state--but only that portion which belonged to the Forest Service. The Gissels, as prior possessors, have a superior right as against the state to possession of the proceeds attributable to Forest Service land. In Restatement (Second) of Torts § 895, (1965), it

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[111 Idaho 728] states, "One who is otherwise liable to another for harm to or interference with land or chattel is not relieved of the liability because a third person has a legally protected interest in the land or chattel superior to that of the other." See also, Thomsen v. State, 70 Wash.2d 92, 422 P.2d 824 (1966). Mere possession alone is sufficient to sustain a trespassor's cause of action for conversion against all but the true owner. New England Box Co. v. C & R Const. Co., 313 Mass. 696, 49 N.E.2d 121 (1943); Welke v. Davenport, 309 N.W.2d 450 (Iowa 1981); Associates Discount Corporation v. Gillineau, 322 Mass. 490, 78 N.E.2d 192 (1948); Adams v. Queen Insurance Company of America, 88 So.2d 331 (Ala.1956); Novak v. State, 195 Md. 56, 72 A.2d 723 (1950). See also, Northern Pac. R. Co. v. Lewis, et al., 162 U.S. 366, 16 S.Ct. 831, 40 L.Ed. 1002 (1896).

The Gissels trespassed upon land belonging to the state and the U.S. government. Idaho Fish and Game officers seized the rice with a valid search warrant when the Gissels were arrested for trespassing. The state, under stipulation of both parties, then sold the rice and retained possession of the share attributable to U.S. land. This share of the proceeds belongs to the U.S. government and not to the state. The failure of the state to account for the proceeds of the sale constitutes a conversion by the state. The Gissels, though trespassors and without legal title, which title rests with the Forest Service, still by mere possession have greater rights superior to that of the state, and the Gissels are, therefore, entitled to recover that share of the money, $10,500, which belongs to the Forest Service.

The state has brought to the attention of this Court the statutory provisions regarding the disposal of property stolen or embezzled and not claimed by the owner. See, I.C. §§ 193801-3805. As previously discussed, the owner of the lands and the rice gathered from...