Keller v. Bolding, 20030221
| Decision Date | 13 April 2004 |
| Docket Number | No. 20030221,20030221 |
| Citation | 678 NW 2d 578,2004 ND 80 |
| Parties | Robert Keller, Plaintiff and Appellee v. Mildred Bolding, individually and as Trustee of the Kamrath Family Trust, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Ronald A. Reichert, Reichert & Herauf, P.C., P.O. Box K, Dickinson, N.D. 58602-8305, for plaintiff and appellee.
James D. Gion, Gion Law Office, P.O. Box 101, Regent, N.D. 58650-0101, for defendant and appellant.
[¶1] Mildred Bolding, individually and as Trustee of the Kamrath Family Trust appealed from a judgment entered in Robert Keller's action for intentional interference with his farm lease contract. We conclude the trial court's findings that Bolding wrongfully terminated Keller's lease and that Keller was entitled to recover $20,000 for lost profits are not clearly erroneous. We affirm.
[¶2] On November 1, 1999, Keller leased from Bolding farmland he had previously leased from Bolding's parents for 16 years. The lease covered 402 acres, of which 343 were subject to cultivation, specified a term running from December 1, 1999, and ending December 1, 2002, and fixed an annual cash rent of $7,000. The lease, which was copied from the one Keller had with Bolding's parents, (1) required Keller "to well and faithfully till and farm the same in a good and farmer-like manner, according to the usual course of good husbandry" according to specified terms and conditions; (2) provided that Keller was to leave 100 acres of summer fallow at the end of the lease or pay $10 for each acre less than 100 or receive $10 for each acre over 100 acres; (3) provided Keller "may not sub-lease the cultivated acreage"; and (4) provided Bolding could terminate the lease if Keller should "fail to do and perform any of the conditions of this lease."
[¶3] Bolding observed hunters on the land on October 17, 2001, and met with Keller the next day. On October 19, 2001, Bolding gave Keller a written notice terminating the lease "effective immediately, based upon your failure to control noxious weeds, [and] to faithfully till and farm . . . in a good and farmer-like manner." That same day, Bolding executed a habitat agreement with Cannonball Company and placed no hunting signs on the land.
[¶4] Keller sued, alleging, in part, that "Bolding terminated the Lease so that she and other family members could share in the income from the property, especially the hunting fees and income," and that Bolding's recission of the lease was an intentional interference with his contract. Bolding answered the complaint, denying the lease was terminated to share in income from the property and denying interference with Keller's contract. Bolding also counterclaimed, alleging, in part:
[¶5] On April 4, 2002, the trial court granted Keller's motion for partial summary judgment, explaining:
Since the lease fails to address hunting, it is subject to the general rule and the plaintiff, as tenant, had the right to control the hunting upon the land which he possessed pursuant to a lease.
[¶6] After a trial, the trial court found Bolding wrongfully terminated Keller's lease and found Keller was entitled to recover damages of $20,000 for lost profits. Judgment was entered accordingly, and Bolding appealed.
[¶7] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.
[¶8] Bolding contends the trial court failed to address her contention "that the reason for termination of the lease was Keller's breach of the provision requiring Keller, in the course of good husbandry, to control noxious weeds."
[¶9] Mildred Bolding testified: (1) on October 17, 2001, she saw hunters on the land; (2) "after we were explained to about the hunting program that had started in the last few years and it had become big business then we were concerned as the time went on"; (3) Keller was charging for hunting on the land and "we thought that was subletting the land"; (4) Cannonball Hunting paid Bolding $15 per bird after Bolding cancelled Keller's lease; (5) she issued a notice of cancellation of the lease on October 19, 2001, "because there were people out on the land that we didn't feel had the right to be out there"; (6) "we also . . . saw all those weeds that were out in there and the land had not been farmed"; (7) at a meeting on October 18, Keller said he had not sprayed for weeds; (8) there were Canada thistles along the creek, the farmland, and the fence, and there were other weeds; (9) "that termination was for the way the crop land looked with all the noxious weeds on the land"; (10) "when we got out there we saw the condition of the ground, we saw the weeds that were at least two-combine widths wide all the way along the sides of the property, the grain was still standing out there, the ground looked like it hadn't been tilled, the weed[s] were just all over the place"; (11) "the farming should have been in a good farmer like way"; and (12) leaving some grain lying around would be a good thing to do if you are trying to raise pheasants.
[¶10] Keller testified: (1) he has had fee hunting the last ten years; (2) to make the land suitable for hunting, he planted food plots, and he fed birds in the wintertime; (3) he left grain unharvested; (4) pheasants like thistle, which is habitat for them, and they eat part of the thistle; (5) wheat is habitat for pheasants; (6) his 5-year average profit was $20,763; (7) he never received any complaints from the weed board or neighbors while he rented the land from the Trust; (8) he sprayed for weeds in 2001; (9) he collected insurance proceeds in years he had no crop; and (10) he made more money in dry years than in others.
[¶11] Dale Wegh testified: (1) he rented the land for $8,040 and started farming it in 2002; (2) he farms other land nearby and was familiar with the land; (3) about 90 to 100 acres were infested with Canada thistle; (4) he sprayed the land twice for Canada thistle; (5) he sprays all his land for Canada thistle every year, and it is his practice to spray twice a year; (6) there was standing grain on the land when he took it over; (7) land generally rents for $28 to $32 per tillable acre in the area; (8) he would pay $28 per acre for this land; and (9) his lease on this land contains no restrictions on the manner of cropping, does not require any insurance, and has no summer fallow requirement.
[¶12] There was testimony that Keller planted food plots to make the land suitable for hunting, that Keller left grain standing for pheasants, that Canada thistle was growing on the farm, that pheasants like thistle, which is habitat for them, and that pheasants eat part of the thistle. Keller testified he did not receive any complaints from neighbors or the weed board while he rented the farm from the Kamrath Family Trust. The tenant now farming the land testified he farms other nearby land and was familiar with this land before he rented it. The new tenant also testified he does not allow hunting on the land, he sprays all his land for Canada thistle, and it is his practice to spray twice a year.
[¶13] Construing the lease provisions requiring Keller "to well and faithfully till and farm the same in a good and farmer-like manner, according to the usual course of good husbandry," the trial court found:
First, I am convinced that where no lease language prevents or reserves it, the lessee has the absolute right to hunt game and charge others for the privilege. Secondly, the restrictive lease language quoted above does not necessarily prevent lessee from engaging in farming practices designed to foster and nurture a thriving pheasant population. Raising ringneck roosters and raising wheat need not be mutually exclusive even though the vigorous pursuit of one might inhibit or retard the other. Rather, it is finding that balance of both to which rooster/wheat producers aspire. It appears to me that the plaintiff strove to achieve just that balance. He could have farmed more vigorously, i.e., from fence line to fence line, but that would have destroyed the natural cover for wildlife, and a food source as well. The phrase "good-husbandry" includes preventing waste, augmenting production and adapting the land use so as to not deplete its production capacity. I find that is what the plaintiff did.
[¶14] We presume the trial court considered the evidence presented to it. Olson v. Olson, 2000 ND...
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