Ivins v. Hardy, 9651

• Citation: 134 Mont. 445,333 P.2d 471
• Decision Date: 19 January 1959
• Docket Number: No. 9651,9651
• Parties: Eula May IVINS, as Executrix of the Will of R. L. Ivins, Deceased and Eula May Ivins, Plaintiffs and Respondents, v. Robert F. HARDY and Mary J. Hardy, his wife, Miles City Bank, a State Banking Corporation; and Arthur T. McIntosh, Individually and as Trustee, Defendants and Appellants.
• Court: United States State Supreme Court of Montana

Page 471

333 P.2d 471

134 Mont. 445

Eula May IVINS, as Executrix of the Will of R. L. Ivins, Deceased and Eula May Ivins, Plaintiffs and Respondents, v. Robert F. HARDY and Mary J. Hardy, his wife, Miles City

Bank, a State Banking Corporation; and Arthur T.

McIntosh, Individually and as Trustee,

Defendants and Appellants.

No. 9651.

Supreme Court of Montana.

Submitted March 18, 1958.

Decided Nov. 21, 1958.

Rehearing Denied Jan. 19, 1959.

Wellington D. Rankin, Arthur P. Acher, Helena, F. F. Haynes, Forsyth, argued orally, for appellant.

Howard A. Johnson, Keith P. Johnson, Butte, Howard A. Johnson, argued orally, for respondent.

CASTLES, Justice.

This is the third appeal taken by Robert F. Hardy, defendant and appellant throughout, in the actions brought by R. L. Ivins, plaintiff, and in each appeal the respondent, seeking an accounting from Hardy and a termination of their joint venture in the purchase and the operation of a large ranching property, owned equally by them. From the date the properties were first acquired, Hardy has occupied the ranch buildings and has managed all or a part of the holdings.

The original purchase was made September 20, 1939. Since then the jointly owned deeded lands, with adjoining state grazing leases and federal grazing permits have been substantially expanded, at times by Hardy in his sole name, although the ownership is joint and although the venture has been continuously in litigation since December 20, 1944. Generally speaking, the decisions in the first two appeals have been for Ivins, the plaintiff and respondent, and against Hardy, the defendant and appellant. But the present is the third appeal, the accounting has still to be made, the properties are still undivided, and briefs of counsel assume the end is not yet.

The interest of the plaintiff is now represented by Eula May Ivins, his widow, appearing as his executrix. In the present suit, which continues the demand for money accounting and asks for a decree partitioning and setting over the properties, other parties have been joined with defendant Hardy. But here, as before, Hardy is the principal defendant and principal appellant, and will be treated as such. For convenience, Ivins will be treated as plaintiff and respondent, rather than his executrix, who has been substituted for him.

Upon the first appeal this court affirmed the trial court's decision that the enterprise for the acquisition and operation of the L O Ranch and other ranch properties was a joint venture. The lower court's order requiring an accounting by Hardy and ordering a sale of the ranch personal property was sustained, but its order for the sale of the real property was reversed. Ivins v. Hardy, 120 Mont. 35, 179 P.2d 745, decided April 15, 1947.

The second appeal was taken from the trial court's judgment on the accounting ordered in the prior appeal, including a money award to Ivins of $24,000. This court affirmed that judgment on April 3, 1950. Ivins v. Hardy, 123 Mont. 513, 217 P.2d 204.

The present action was then brought by Ivins for the termination of the tenancy in common in the real property and for an accounting of all monies collected by Hardy, including the value of his use of the lands since January 1, 1948. An amended complaint in this present action was filed in Custer County district court April 17, 1951. The present and third appeal grows out of that complaint. Specifically, the third appeal is from the trial court's interlocutory decree confirming a referees' report proposing a division of the ranch between the joint owners.

Despite the protracted course of litigation, and the objections which were made by counsel in advance of the hearing, 'just for the record,' it must be borne in mind that the interlocutory decree here appealed was entered pursuant to a stipulation between counsel for all parties which, among other things, provides:

'That all of the above lands, permits and leases are owned and held by the plaintiff, R. L. Ivins, and by the defendant, Robert F. Hardy, as tenants in common each owning an undivided one-half interest therein.

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the said lands are so situated that the same can be partitioned and divided between the respective co-owners and that a partition thereof, according to the respective rights of the co-owners, is hereby ordered, and for that purpose a Board of three referees shall be appointed by the Court to make such partition and division.'

Likewise, it must also be borne in mind that the decree here appealed was entered pursuant to a further stipulation between counsel for all parties that the decree in part above-quoted should be amended as follows:

'That whereas said Interlocutory Decree directs the commissioners on partition to partition and divide the parties' lands described as the lands held under Taylor Grazing Permits, that said provision be annulled and the following substituted therefore: 'The Commissioners are advised that lands held under Taylor Grazing Permits are not subject to partition and division as such, but the Commissioners are entitled to give such consideration to said lands as being adjoining or adjunct to lands held in fee by either party as they may decide said lands will contribute, if anything, to the value of the lands held in fee which are subject for division, or that are leased for a term of years." Emphasis added.

The foregoing, by stipulation of all counsel, are the basic instructions on which the referees were directed to bring in a report for approval or disapproval by the district court. These stipulations recognize that the properties in dispute could be divided in kind. They also recognize that the value of the deeded lands and the increase in their value by the leases on the adjoining state grazing lands was further increased by the value of the permits on the Taylor Grazing Act (43 U.S.C.A. Sec. 315 et seq.) lands within the public domain but adjoining the lands jointly owned by the parties and the state lands on which they jointly owned grazing leases.

On March 30, 1955, two of the referees, Simpson and Allen, filed a report allocating certain lands to the plaintiff, and other lands to the defendant. On April 4, 1955, the third referee, Mitchell, filed a separate report recommending a different division of the lands. On June 15, 1955, referees Simpson and Allen filed a supplemental statement explaining in detail the basis for their recommended partition. Subsequently, on December 12, 1955, the court entered its interlocutory decree approving the report. It is from this decree that the present appeal is taken.

The supplemental statement to the referees' report contained the following explanation:

'The animal units for a ten month period on the sections above mentioned with the asterisk * [certain hay lands] were arrived at according to the number of tons of hay per acre as we estimated would be produced in an average year over a period of time. The average winter feeding period in this area being about 2 months we calculated the animal units for 60 days and translated it into 10 month period, reason being to simplify our report. Figuring the average weight of a cow, calf and yearling as being 700 1bs. and that it required 2% of an animal's weight to sustain such weight for a period of sixty days, thus giving the complete operation for one year.

'It is our judgment that natural hay land would produce 1 ton per acre, therefore, it would require 2 acres of natural hay land to carry one animal ten months. We further calculated and allowed three acres per animal unit on developed hay land and four acres of potential hay land.'

The referees' report was confirmed and adopted by the district court after hearing testimony of all appraisers and of numerous witnesses for the contending parties whose testimony shows honest difference of opinion but complete familiarity with the lands and with livestock operations in the area. The testimony and cross examinations reveal that all appraisers are men of integrity and experience, eminently qualified for the extremely difficult task they accepted under the stipulations of all parties and that the report the district court confirmed was made using 'the formula as set up in Extension Circular 204, revised by 1949 State Land Reclassification for Taxation Purposes in Montana by the Extension Service of Montana State College' in an attempt to 'set up a partition that would divide the ranch into two balanced units for a twelve-month carrying on of operations.' Asked 'What was that break-down? Explain it to the court?' one of the referees testified:

'A. Well, if it was strictly a grazing section, it was listed as a grazing section with the mark of the code [detailed code devised by the appraisers for their own convenience under the state Extension Service formula] that I was following on the township and, consequently, in the report. If it was land with hay meadow or potential hay meadow development, it was listed, too, that way on the plats and in the report. The reason for doing this is only arrived at from practical observations. If you attempt to purchase or become the operator of range land, your first consideration is to whether there's a possibility of improving it for increased carrying capacity.

'Q. Now, if I understand you and understand the partition correctly, that was considered upon the animal-carrying-capacity basis? A. Yes, sir.

'Q. Not an acre-to-acre basis? A. No, sir.'

The discount of 25 per cent in the estimated carrying capacity values attributed to the leased state lands and the federal permit lands, arising by reason of their non-fee ownership, was explained by one of the referees in answer to a question asked by the trial judge, as follows:

'Q. * * * will you state to the Court your reasons for arriving at the 75 per cent evaluation? A. Yes, it was from our knowledge of the entire ranch property holdings that, animal unit for...