Ives v. Beeler

• Decision Date: 13 January 1900
• Parties: IVES v. BEELER.
• Court: Kansas Court of Appeals

59 P. 726

9 Kan.App. 892

IVES v. BEELER.

Court of Appeals of Kansas, Southern Department, Western Division

January 13, 1900

Error from district court, Edwards county; J. E. Andrews, Judge.

Action by H. L. Ives against C. W. Beeler. Judgment for defendant and plaintiff brings error. Affirmed.

D. A Banta, for plaintiff in error.

F Dumont Smith, for defendant in error.

OPINION

PER CURIAM.

The plaintiff in error, as plaintiff below, claimed to have been damaged in several particulars by reason of the trespass of the defendant in destroying the plaintiff’s wire fence, and in turning a large number of cattle upon plaintiff’s pasture land. The defendant filed a counterclaim, and recovered a judgment in the sum of 50 cents. From the facts proven, it appears, however, that the plaintiff himself trespasses upon the peaceable possession of the defendant (who held the tract in dispute as the tenant of the owner thereof), and built the fence in question in such a way as to cut off the tract from the remainder of defendant’s pasture, and in so doing deprived the defendant of the use of a windmill and tank which were essential to the defendant for watering purposes. The fence was shortly afterwards cut by the agents of the defendant’s lessor, but the defendant adopted the act, and received the benefit thereof. The plaintiff’s claim to the ownership and control of the said tract of land was under a tax-sale certificate assigned to him in April, 1898, by Edwards county. Directly afterwards the plaintiff built the fence as stated, and in June thereafter the land was redeemed from the tax sale by the owner thereof.

Plaintiff in error claims that he was the owner of the tract described in the tax-sale certificate to the extent that he had the right to fence and use the same notwithstanding the peaceable and lawful possession of the defendant, and that he is entitled to damages as set forth in his petition. He relies on the decision in the case of Stebbins v. Guthrie. 4 Kan. 353, 369. This claim is untenable. The decision in that case, so far as it might be applicable here, was overruled in the case of Douglass v. Dickson, 31 Kan. 310, 1 P. 541. where the court quotes with approval the following from Cooley, Tax’n, p. 358: "The purchaser has no title to the land until the time for redemption has expired. He had consequently no constructive possession of the premises, and no more right to go upon and make use...