MacKenzie-Richardson, Inc. v. Allert, KENZIE-RICHARDSO

• Decision Date: 01 July 1954
• Docket Number: KENZIE-RICHARDSO,No. 32503,I,32503
• Citation: 45 Wn.2d 1,272 P.2d 146
• Court: Washington Supreme Court
• Parties: Macnc. v. ALLERT et al.

Page 1

45 Wn.2d 1

272 P.2d 146

MacKENZIE-RICHARDSON, Inc. v. ALLERT et al.

No. 32503.

Supreme Court of Washington, Department 2.

July 1, 1954.

Miller, Miller & Jansen, Ritzville, for appellant.

George H. Freese, Cross & Whitmore, Ritzville, for respondents.

SCHWELLENBACH, Justice.

MacKenzie-Richardson, Inc., of which James Richardson is the president and principal stockholder, is engaged in the cattle business in Eastern Washington and owns and leases a considerable amount of and in Adams County. In particular, it owns the Northeast Quarter of Section 7, Township 15, N.R. 38, EWM. Adjoining it to the east is the Northwest Quarter of Section 8, Township 15, N.R. 38, EWM, which is owned by Cornelius Allert, a wheat farmer. There is no fence between Sections 7 and 8. A road known as the Benge Road runs through the Northeast Quarter of Section 7 in a northerly and southerly direction, a short distance west of the dividing line of the two quarters, leaving a narrow strip of land, consisting of twenty acres, lying between the easterly line of the Benge Road and the line dividing the two quarters.

In the spring of 1943, Cornelius Allert, without the permission of Richardson, plowed the twenty acres and seeded it in the fall. He took the crop off in 1944. In fact, he took a crop off in each of the years 1944, 1946, 1948, 1950 and 1952. The parties met after the first crop was taken off. Allert offered to pay for the rental of the land, either in cash or in wheat. Richardson refused. He was interested in using the land for grazing purposes and wanted it seeded back to grass. Allert obtained grass seed, but it was never used.

April 3, 1945, Allert purchased the west half of the Southwest Quarter of Section 8 from the State of Washington. These eighty acres lie directly south of his quarter section and had been leased by Richardson from the state for grazing purposes, together with other land adjoining on the east. However, he had permitted his lease to expire before Allert purchased the land. Richardson's cattle continued to graze on the eighty-acre tract after it had been acquired by Allert. The parties met again and could not agree on a sale or trade of the properties and finally agreed, as the trial court stated in its memorandum opinion, to 'let it go as it is.'

This action was commenced on December 12, 1947. The case was tried December 15 and 16, 1952. The delay was caused partly because of the sickness of plaintiff's attorney, by a change of venue from Whitman to Adams County, and partly by the lack of desire of either party to have the case tried. The action was for an accounting for all crops raised during the years 1944, 1946, 1948, 1950 and 1952, and for delivery to plaintiff of one-third of such crops; or, in the alternative, for judgment for such sum or sums as would represent the reasonable value of the use and occupation of the twenty-acre tract during such period.

The trial court found that, as to the 1944 crop, Allert offered to pay for the rental on the basis of one-third of the crop raised, and that by Richardson's refusal to accept the offer, he waived his right to collect rental for that crop; that the parties agreed, in April of 1945, for the exchange of the use of the tracts owned by the respective parties, which agreement continued in effect until the commencement of this action in December of 1947; that, at the time of the commencement of the action, Allert had partly performed under the agreement of April, 1945, by summer fallowing and seeding, and was entitled to the benefits of the agreement for the crops of 1946 and 1948; and that, for the crop years of 1950 and 1952 the reasonable value of the use of the two crops was equal, and any rental that plaintiff was entitled to by virtue of defendant's use of the twenty-acre tract was offset by the reasonable value of the use of the eighty-acre tract by plaintiff. Judgment was entered dismissing the action and this appeal follows.

The testimony is in direct conflict as to all conversations and transactions between the parties throughout the entire period in dispute. We have examined the record and cannot say that the evidence clearly preponderates against the findings of the trial court. We therefore will not distrub the findings. Brown v. Van Tuyl, 40 Wash.2d 364, 242 P.2d 1021.

Appellant, in his brief, relies almost solely on trespass and argues that he is entitled to damages for such tort, rather than to rental for the use of the land. As for the crop years of 1946 and 1948, there was no trespass because the court found that the parties were operating under an agreement for the exchange of the...