Hamilton v. Rock

• Decision Date: 25 March 1948
• Docket Number: 8769.
• Parties: HAMILTON et al. v. ROCK.
• Court: Montana Supreme Court

191 P.2d 663

121 Mont. 245

HAMILTON et al. v. ROCK.

No. 8769.

Supreme Court of Montana

March 25, 1948

Appeal from Sixteenth Judicial District Court, Prairie County; W. R Flachsenhar, Judge.

Action in conversion by W. G. Hamilton and Hunter Hamilton against Arthur Rock to recover value of hay taken by defendant. From an adverse judgment, plaintiffs appeal.

Judgment reversed and cause remanded for new trial.

P. F. Leonard and Daniel G. Kelly, both of Miles City, for appellants.

Farr & Colgrove, of Miles City, for respondent.

Angstman Justice.

Plaintiffs brought this action in conversion to recover the sum of $450 the alleged value of certain hay alleged to have been taken by defendant. The answer admits taking the hay and alleges ownership thereof in defendant and seeks damages against plaintiffs for hauling away seven tons worth $7.50 per ton and for damages in the sum of $50 caused to the remainder through weather conditions made possible by plaintiffs' removal of the top of one of the stacks and for an additional $50 damages done by plaintiffs' cattle to the hay.

The cause was tried to the court sitting with a jury. Verdict was in favor of defendant in the sum of $152.50 and interest. Plaintiffs' motion for new trial was denied and they appealed from the judgment.

The main issue in the case is whether plaintiffs or defendant owned the hay in question.

It is conceded that plaintiffs cut and stacked the hay and put a fence around the stacks. It was prairie hay which, before severance, constituted a part of the real estate. Kiehl v. Holliday, 77 Mont. 451, 251 P. 527. Plaintiffs testified (and this was not controverted) that they had leased the N.W. 1/4 of section 26, T. 10, R. 54, from Anna M. Clellan, the owner, since 1936, paying $10 a year for the use of the land. They introduced in evidence a check dated October 28, 1941, payable to Mrs. Anna M. Clellan in the sum of $10 on which was written 'Rent on N.W. 1/4 Sec. 26-10-54 from April 1st, 1941, to April 1st 1942.' The check contained the endorsement of Anna M. Clellan. The hay was cut and stacked in July, 1942. According to plaintiffs' evidence some of it was cut from the above described land and some from adjoining land owned by plaintiffs. It was stacked on the above described land.

The evidence was sufficient to establish a lease within the rule stated in Stoltze Land Co. v. Westberg, 63 Mont. 38, 206 P. 407, 408, wherein it was said: 'No particular words, technical or otherwise, or form of expression in an instrument are necessary to constitute it a lease. Any language by which the possession and enjoyment of land is granted for a specified time at a stipulated rental creates a tenancy, and is in effect a lease.' Plaintiffs testified that they were in the habit of paying the rental in the fall of the year.

They contend that they held over and retained possession after April 1, 1942, without demand of possession or notice to quit and that in consequence that are presumed in law to have held by permission of the landlord for another full year pursuant to subdivision 2 of section 9889, Revised Codes of Montana 1935.

Defendant contends that the following facts show that the lease, if any there was, was terminated by a letter written by Anna M. Clellan to plaintiffs on May 18, 1942, reading: 'W. G. Hamilton, Ismay, Montana. Dear Sir: Just a few lines to let you know that all deals you and I may have had in regard to the sale of my land at Lacomb, Montana, are cancelled. I have paid the back taxes and as I told you in my last letter, if I did, all deals was off. In the future if you wish to rent or buy the place, you have to see Connie Clellan at Mildred as he will act as my agent. Yours truly, Mrs. Anna M. Clellan, Oak Park, Illinois.'

Plaintiffs admitted receiving this letter but take the position that it did not constitute a demand for possession or notice to quit.

The evidence shows that Connie Clellan pursuant to authority from Mrs. Anna M. Clellan sold the land to defendant Rock on May 20, 1942, receiving a payment of $50 down and the balance was agreed to be paid and was actually paid in December 1942.

Neither Connie Clellan, Mrs. Clellan, nor defendant made demand for possession of the property nor gave notice to quit unless the letter above referred to was sufficient for that purpose.

Connie Clellan saw plaintiffs when they were putting up the hay on the afternoon of July 6, 1942. He testified that W. G. Hamilton, one of the plaintiffs, said to him: 'Say, I got a letter from your sister-in-law saying if we wanted to either rent or buy that land why we'd have to see you.' The witness said he replied: 'You are too late. I have already sold that land.' Upon being asked whom he sold it to he said 'Art Rock.'

Plaintiffs had started cutting the hay the day before this conversation is claimed to have taken place. Connie Clellan also testified that he told Mr. Hamilton that 'I don't think I'd cut any hay on her land,' and that Mr. Hamilton replied, 'Well, we'll go ahead and cut the hay and we'll deal with Art afterwards.' Mr. Hamilton denied that any such conversation took place.

Plaintiffs offered the following instruction No. 4 which was refused: 'The jury is instructed in all cases of tenancy upon agricultural land where the tenant has held over and retained possession for more than 60 days after the expiration of his term without any demand of possession or notice to quit by his landlord or the successor in interest of his landlord, if any, there be he shall be deemed to be holding by permission of the landlord, or the successor in interest of his landlord, and shall be entitled to hold under the terms of the lease for another full year and shall not be guilty of an unlawful detainer during said year, and such holding over for the period aforesaid shall be taken and construed as a consent on the part of a tenant to hold for another year.'

Defendant objected to the giving of the instruction for reasons which may be summarized as follows:

(1) That it is not applicable to the facts of the case.

(2) That there was no proof that there was any hiring of real property.

(3) That the lands are not agricultural lands within the meaning of section 9889 upon which the instruction was based.

Error is assigned for refusal to give the offered instruction. This assignment of error is meritorious and necessitates a reversal of the case.

We have already pointed out that the evidence was sufficient to show a hiring of real property and hence to meet the second ground of objection. That the lands are agricultural land is equally clear. The term 'agricultural lands' as used in section 9889 was to distinguish it from mining or urban property. We have held that lands used for grazing purposes are used for one agricultural purpose. De Fontenay v. Childs, 93 Mont. 480, 19 P.2d 650. The term 'agriculture' should receive a liberal construction and as used in the homestead laws embraces 'forests, grazing land, and, in fact, all types of land which, in good faith, were sought for a home, provided the lands could, by the settler's effort, be made habitable and used as a farm home.' United States v. Northern Pac. Ry. Co., 311 U.S. 317, 361, 61 S.Ct. 264, 284, 85 L.Ed. 210.

The letter of Mrs. Clellan to plaintiffs cannot be construed as a demand for possession or as notice to quit as matters of law. It simply notified plaintiffs that Mr. Clellan was made the agent of Mrs. Clellan and that dealings for the rental or sale would thereafter have to be made through Mr. Clellan. Mr. Clellan took no steps to demand possession or to notify plaintiffs to quit the premises. It was for the jury to say whether plaintiffs held over and retained possession of the land within the meaning of section 9889. In determining that question they would have a right to consider the character of the possession during the life of the lease which had continued since 1936, keeping in mind that possession of grazing land is necessarily not so open and obvious as possession of tillable land which is actually being worked or cultivated. Likewise it was for the jury to say whether defendant who lived in close proximity to the lands in question knew or was put on notice by plaintiffs' possession that they claimed some interest in or right of continued possession in the land at the time he became its owner. The 60 days mentioned in section 9889 had not expired when he says he bought the land and it is a question for the jury to say whether he should have made a demand for possession or notice to quit under all the circumstances of the case if he desired to terminate plaintiffs' right of possession. This the jury should determine under appropriate instructions. Offered instruction No. 4 should have been given to the jury.

The court gave to the jury its instruction No. 5 reading:

'You are instructed that if you find from the evidence in this case that the plaintiffs were notified by the then owner of the land upon which the hay in question was cut or her agent, in May of 1942, that their tenancy of said land was terminated, then the plaintiffs did not have the right to the use, occupancy or possession of said lands or to cut, stack or remove any of the hay therefrom.'

The giving of instruction No. 5 did not cure the error in rufusing to give plaintiffs' offered instruction No. 4 because the jury should have been instructed as to what consequences would follow if they construed the letter of May 1942 as insufficient to terminate the tenancy.

Plaintiffs also offered instruction No. 2 reading: 'The jury is instructed that if a lessee of real property remains in possession thereof after the expiration of the hiring or leasing period and the lessor accepts rent from him the...