Meeker v. Gardella

• Decision Date: 24 February 1890
• Parties: MEEKER v. GARDELLA ET AL.
• Court: Washington Supreme Court

23 P. 837

1 Wash. 139

MEEKER v. GARDELLA ET AL.

Supreme Court of Washington

February 24, 1890

Appeal from district court, Pierce county,

Roger S. Greene, for appellant.

Judson, Sharpstein & Sullivan, for appellees.

ANDERS, C.J.

On the 24th day of March, 1885, a judgment was rendered in the district court of the second judicial district of Washington Territory, holding terms at Tacoma, against appellant, who was defendant, and in favor of appellees, who were plaintiffs, for the recovery of the possession of certain lands in Pierce county, described in the complaint in this action. Appellant, however, did not relinquish the premises to appellees, but appealed the cause to the supreme court of the territory, which court, on the 4th day of February, 1887, affirmed the judgment of the court below. 13 P. 709. Soon after the last-mentioned date, appellant surrendered the premises in dispute to appellees. The present action was brought to recover damages for the wrongful withholding, and for use and occupation, of the land and premises during the pendency of the appeal of the former cause to the supreme court, and for the conversion by appellant of certain hop-poles claimed by appellees. On the land in controversy there was a cultivated hop-yard of about 25 acres, a fruit-bearing orchard, and about 25 acres of meadow land, besides considerable pasture. Appellant, while in possession, from March, 1885, till March, 1886, gathered the hops and fruit, and cut the hay grown on the land, and disposed of the same for his own benefit, and also had the use of the pasture. The principal controversy during the trial in the lower court was as to the measure of plaintiff's damages; but, before entering into the discussion of that question, we will advert to some other matters which arose in the course of the trial.

It appears from the transcript that, in getting a jury to try the cause, the regular panel became exhausted, and, while the sheriff of the county was present in the court-room, the judge ordered the United States marshal to summon a talesman from the by-standers, which he accordingly did. To this proceeding the defendant objected, and he now assigns the action of the court in that behalf as error. For the court to thus order a venire or summons to be served by some other person, when the duly-elected and qualified sheriff was present, and, so far as the record shows, not disqualified was to depart from the usual and regular course of practice but, as it does not appear that appellant interposed any challenge to the juror so summoned, or that the juror was in any way unfit to try the case, we think that, if the court erred, it was error without prejudice to the defendant. State v. Elliott, 45 Iowa, 486; Territory v. Hart, 14 P. 768, 774.

Appellant also claims that the court erred in permitting evidence to go to the jury as to the custom of farmers of selling hops while growing, and before maturity, and that the court wrongfully allowed plaintiffs to show the highest market value of hops before they were gathered or ripe, as well as afterwards; and, under the pleadings, we are of the opinion that such testimony should not have been permitted by the court. It related to a matter of special damage not set up in the pleadings; and besides, it does not appear that appellees would or could have sold the hops before maturity if they had been in possession of the farm and hop-yard themselves.

Counsel for appellant further contends that the court erred in overruling the demurrer to the amended complaint. He bases his objection to the complaint on the ground that the action should have been brought on the appeal-bond of appellant filed in the action of ejectment. The position of counsel is not tenable. The bond was given to the appellees, not to provide them any exclusive remedy against appellant for damages, but to indemnify them against payment of costs, and secure to them their damages for being kept out of possession of their property, and the satisfaction of the judgment appealed from, in case of its affirmance. Appellees were not bound to sue on the bond, but were at liberty to bring their action for use and occupation directly against the defendant Meeker, alone.

In proving damages in the court below, plaintiffs were permitted to show the highest market value of the produce of the farm during the year 1885. They claimed that the measure of their damages was the highest market price of the crops taken by defendant, without any diminution on account of expense of gathering and fitting them for market or for use. On the other hand, the defendant insisted that the market price of the various crops at maturity, and ungathered with interest thereon, was the correct measure of damages, and all he ought to pay. We do not think that, in the case as presented on the argument, either rule contended for by the respective counsel is the correct measure of damages. As before stated, the action is for use and occupation. The defendant was not a mere naked trespasser. He was holding, under color of right, adversely to plaintiffs; and in that case the true measure of damages is the fair rental value of the premises together with interest thereon to the time of the trial. Sedg. & W. Tr. Title Land, §§ 665, 666, and cases cited; Vandevoort v. Gould, 36 N.Y. 646. And the value of the crops raised and harvested by the defendant was immaterial, except so far as it might assist in determining the fair rental value of the premises; and this, no doubt was the real object of counsel in introducing the testimony above mentioned. Where the action is for use and occupation, the crops raised and harvested by the defendant while in exclusive possession belong to him, and not to the owner of the land. Page v. Fowler, 39 Cal. 412; Stockwell v. Phelps, 34 N.Y. 363; Field, Dam. 593. Appellant concedes the highest market value of the crops to be the measure of damages, if the detention of the lands was willful, which he claims, however, was not the case. The complaint in this action states that the defendant wrongfully continued to hold the exclusive possession of said premises, notwithstanding the judgment and decree of said district court, from the date of the rendition of said judgment to the month of March, 1886, when he yielded possession to plaintiffs. On the trial in the district court, appellees introduced in evidence the pleadings, findings of fact, and conclusions of law, and judgment of the district court, in the original action, as well as the opinion and judgment of the supreme court in the case. The district court in that action found that the defendant held the premises in controversy by color of title adverse to plaintiffs, and allowed him...