Jones v. Stauffer

• Decision Date: 22 May 1930
• Docket Number: 5373
• Citation: 49 Idaho 387,288 P. 419
• Parties: MONTIE L. JONES, Respondent, v. HENRY STAUFFER, Appellant
• Court: Idaho Supreme Court

288 P. 419

49 Idaho 387

MONTIE L. JONES, Respondent, v. HENRY STAUFFER, Appellant

No. 5373

Supreme Court of Idaho

May 22, 1930

APPEAL AND ERROR-MOTION TO DISMISS APPEAL-MOOT QUESTION-INJUNCTION BOND-PRESUMPTION-MORTGAGES-REQUISITES-MORTGAGOR'S TITLE-IMPROVEMENTS ON PUBLIC LANDS.

1. Where it was conceded that appeal from injunction pendente lite was not perfected, attempted appeal from such order should be dismissed.

2. Appeal from final judgment held not dismissed on ground brief was not filed in time, nor that controversy had become moot where decision might result in liability on injunction bond.

3. There is presumption proper undertaking was required before issuance of injunction (C. S., sec. 6772).

4. Mortgage securing note for purchase price of water shares created no lien against land that could be foreclosed, where mortgagor had no title (Desert Act, 43 U.S. C. A., sec. 321 et seq.).

5. Court being without jurisdiction to foreclose mortgage against land was unauthorized to appoint receiver, and receiver's lessee could not legally enter into possession.

6. Homestead entryman held entitled to crops planted by defendant who took possession knowing such homestead entryman had filed on land.

APPEAL from the District Court of the Sixth Judicial District, for Butte County. Hon. Ralph W. Adair, Judge.

Action to enjoin occupation of real property. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

Peterson Baum & Clark, W. J. Lamme and Wm. Story, Jr., for Appellant.

Allowance of entry by land office gives entryman possession as against the world, except the United States government. (Selway v. Flynn, 6 Land Dec. 541; Thomas v. Blair, 13 Land Dec. 207; T. C. Power & Bro., 33 Land Dec. 152; Regulation Cir. 474, sec. 16.)

Suspension of entry by department does not extinguish right of the entryman. (Kendall v. Bunnell, 56 Cal.App. 112, 205 P. 78.)

An entryman on public lands in good faith and who has made improvements thereon, as against one claiming under a superior title, has the right to remove such improvements. (Bingham County etc. Assn. v. Rogers, 7 Idaho 63, 59 P. 931; Richardson v. Bohney, 19 Idaho 369, 114 P. 42; Wallbrecht v. Blush, 43 Colo. 329, 95 P. 927.)

J. H. Andersen, for Respondent.

A relinquishment of an entry upon which the entryman has given a mortgage extinguishes the mortgage. The land becomes a part of the public domain subject to no lien and goes to the subsequent entryman from the United States free and clear of all incumbrances. (Hebert v. Brown, 65 F. 2.)

The courts have universally held that growing crops, at least before maturity and severance, are a part of the realty and pass by conveyance thereof. Before a crop grown upon realty could be regarded as personal property it must have matured and have been actually severed from the realty. (Kirtley v. Dykes, 10 Okla. 16, 62 P. 808; Pacific Livestock Co. v. Isaacs, 52 Ore. 54, 96 P. 460.)

When it came to the attention of the court that the receivership affected unpatented government land embraced in the homestead entry of respondent, and therefore beyond the jurisdiction of the court, it was the duty of the court to refuse to exercise further jurisdiction and to set aside the receivership. (Williams v. Sherman, 36 Idaho 494-505, 212 P. 971.)

BUDGE, J. Givens, C. J. and Lee, Varian and McNaughton, JJ., concur.

OPINION

BUDGE, J.

In 1923 one Judy filed homestead entry at the United States land office at Blackfoot covering the NE. 1/4 of sec. 30, Tp. 6 N., R. 30 E., B. M. In September of the same year he relinquished the homestead entry and made application to enter the land under the Desert Act. This application was held in abeyance pending investigation of an adequate water supply for the property. As evidence of a water right Judy filed with his application copy of an agreement whereby he agreed to buy from the Columbia Trust Company 160 shares of stock in the Blaine County Canal Company and to enter into a contract with the Blaine County Reservoir Company for a supplemental water right. The purchase price of the water rights was paid partly in cash and the balance with a note secured by mortgage on the water stock and all the right, title and interest which Judy might acquire in the land covered by the desert application. Judy took possession of the land and farmed it either personally or by lessee. In the fall of 1926 the trust company obtained a judgment foreclosing its mortgage against the shares of stock representing the water right and the right, title and interest of Judy in and to the land, for his failure to pay the principal and interest of the note. On application of the trust company and with Judy's consent the court appointed a receiver to take and hold possession of the land pending its sale. In December, 1926, the receiver leased the land to appellant for the term of one year, on a crop division basis. August 8, 1927, the order appointing the receiver was vacated.

In March, 1926, respondent filed application for homestead entry on the same land. The application was suspended because of Judy's application to enter the land under the Desert Act. Respondent notified appellant in April, 1926, of his filing application for homestead entry. Judy withdrew his application for the desert entry June 23, 1927, and respondent's homestead entry was then allowed. Respondent notified appellant of the allowance of his homestead entry and requested appellant to vacate the premises and remove whatever property he had thereon. Respondent established his residence on the land July 4, 1927, and on July 28th following instituted the present action, to enjoin appellant from trespassing on the land. An injunction pendente lite was granted August 8, 1927, enjoining appellant from further entry upon or possession of the land. An appeal from the temporary injunction was not perfected. Thereafter, a trial was had before the court resulting in the issuance of an injunction perpetually enjoining appellant from in any manner entering upon, trespassing upon, occupying or using or interfering with the occupation and use of the land in question. This appeal is prosecuted from the judgment awarding respondent the permanent injunction.

In limine, we are met with a motion to dismiss the appeal. Since it is conceded by appellant that the appeal from the injunction pendente lite was not perfected it follows that the attempted appeal from such order should be dismissed. We are not disposed to dismiss the appeal from the final judgment upon the ground that appellant's brief was not filed...