Pacific Live Stock Co. v. Isaacs

• Decision Date: 30 June 1908
• Citation: 52 Or. 54,96 P. 460
• Parties: PACIFIC LIVE STOCK CO. v. ISAACS et al.
• Court: Oregon Supreme Court

96 P. 460

52 Or. 54

PACIFIC LIVE STOCK CO. v. ISAACS et al.

Supreme Court of Oregon

June 30, 1908

Appeal from Circuit Court, Malheur County; George E. Davis, Judge.

Action by the Pacific Live Stock Company against William H. Isaacs and another, doing business as Isaacs & Gwinn. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

This is an action in conversion for the value of a quantity of hay of which, it is alleged, plaintiff was the owner, possessed and entitled to the immediate possession at the time defendants took and converted it to their own use in the fall of 1901 and the winter and spring following. It was cut and stacked on premises claimed by plaintiff, as belonging to it commonly known as the Rhinehart Springs Place, situate in Malheur county, a description of which by legal subdivision is fully set forth in the complaint. The action also involves the value of some pasturage on the same place, which, it is alleged, was consumed by defendants' stock.

The complaint contains the usual allegations, which are denied by the answer, but in addition there is an affirmative defense to the effect that at the time of the alleged conversion, and between the spring of 1900 and the winter of 1902, one James Gentry, under a claim of right, was in the adverse, continuous, and exclusive possession of the lands on which the hay mentioned in the complaint was grown; that Gentry claimed and declared that he was the owner, and rightfully and lawfully in the possession thereof, and had good right to sell and dispose of the hay growing and raised thereon; that defendants in good faith, believing that he was the owner and lawfully in possession, purchased from Gentry, for a valuable consideration, the right to cut and harvest the crop of 1901, and in pursuance thereof they expended large sums of money in properly irrigating, caring for and harvesting the crop. The reply, after denying the new matter of the answer, avers that defendants did the things alleged by them with full knowledge, at the time, that plaintiff was seised and possessed of the premises described in the answer and on which the hay was grown, and that the hay was their property; that Gentry was not the owner thereof, and had no right or authority to sell or dispose of it. A trial was had before a jury, resulting in a verdict and judgment for plaintiff, from which defendants appeal assigning as errors the overruling of the motion for a nonsuit, improper admission of evidence over their objection, and erroneous instructions.

John C. Rice, for appellants.

John L. Rand, for respondent.

SLATER C. (after stating the facts as above).

The legal title to the land on which the hay was harvested was and is in the United States. Plaintiff, however, seeks to recover by establishing a possession and right of possession of the land under a claim of preferred right to purchase from the United States, as the assignee of one F.A. Hyde, at the time the hay was cut and harvested, and that defendants and James Gentry, under whom they claim, were trespassers thereon; while the defense is that Gentry was in the actual possession of the land holding adversely to plaintiff, in good faith, under a claim of color of title. "It is recognized as a general rule that where the title to property which has become personalty by reason of its severance from the soil or freehold, as in case of timber felled, ore mined, stone quarried, etc., depends upon the ownership of the real estate from which it was severed, the owner of the real estate, if out of possession, cannot maintain trover for such property where the severance was made by a person holding adversely to such owner and in good faith under claim and color of title, since such an action, if permitted, would result in a determination of the title to real estate between conflicting claimants in a transitory action. The remedy of the true owner in such a case is by ejectment to recover possession and trespass for mesne profits." 28 Ency. (2d Ed.) 670. But after recovery of possession in ejectment, the true owner may maintain trover for property severed from the freehold by the disseisor while holding adversely. Id. 671.

It was shown that plaintiff, by and through its agents and servants, of whom Gentry for a time was one, was in the possession of the land from 1894 until about March, 1900, during which time it had inclosed the same with a fence, aided by natural obstructions or barriers, had erected thereon a dwelling house, barn and stock sheds, and had seeded 40 to 50 acres thereof to alfalfa, from which it was accustomed annually to cut hay for the feeding of stock. To aid its possession, thus shown, by adding thereto a right of possession, plaintiff offered in evidence an opinion rendered by the Secretary of the Interior, under date of October 27, 1902, and the same was received in evidence over the defendants' objections. By recitals therein, and not otherwise, it appears to have been the result of a contest initiated by James Gentry, under whom defendants claim, against the allowance of certain selections filed by one F.A. Hyde, under the act of Congress of June 4, 1897, c. 2, 30 Stat. 11-36 (U.S.Comp.St.1901, p. 3768), for certain unsurveyed lands. One of these selections was made on April 15, 1898, and two others on October 5, 1898, altogether covering the lands occupied by plaintiff; that the selections were filed at the instance and for the benefit of the plaintiff, to whom Hyde conveyed; that the approved plat of the government survey thereof made in 1898 was filed in the local land office March 26, 1900; that in July, 1899, Gentry was put off the lands, under an order of court made in a suit in equity brought by the company in June of that year to enjoin and restrain him from interfering with its possession; that he remained away until about March, 1900, when he returned and took possession, the suit having been dismissed by decree of the court in which it was brought, and, on appeal to this court, that decree having been affirmed in June, 1900 ( Pacific Livestock Co. v. Gentry, 38 Or. 275, 61 P. 422, 65 P. 597); that on May 15, 1900, Gentry applied to make a homestead entry for the lands described in the answer herein, but his application was rejected by the local land office, because the prior selection of Hyde embraced the lands applied for by him, excepting one 40-acre tract; that on June 8, 1900, Gentry filed protest against Hyde's selections, to the extent of lands applied for by him, wherein he alleges, in substance and effect, that on or about October 31, 1894, he settled upon the lands in controversy with the view to claim the same under the homestead laws, and with the intention to make homestead entry thereof when surveyed; that he erected a dwelling house on the lands, and ever since the date of his settlement has been continuously in the possession thereof, residing thereon when the selections by Hyde were filed; and that, after the lands were surveyed, he applied to make a homestead entry thereof, but that his application was rejected for conflict with said selections; that a hearing was had on the protest in August, 1900, at which both Gentry and plaintiff herein, as successor in interest to Hyde, appeared and submitted testimony; that the local officers disagreed in their opinions on the evidence; the receiver, finding in favor of Gentry, recommended the rejection of Hyde's selections to the extent of the conflicts with Gentry's claim; the register finding in favor of the company, recommended that the selections be allowed to stand; that on December 16, 1901, the Commissioner of the General Land Office affirmed the decision of the receiver, rejected the selections as to all the lands embraced therein, and held that Gentry had shown himself entitled to make homestead entry for the lands claimed by him; that the Commissioner's decision was based upon the ground that the lands were not subject to selection under the act of June 4, 1897, when the selections were filed, for the reason that they were not vacant lands within the meaning of said act, but were at the time occupied either by Gentry or the Pacific Livestock Company; that the latter appealed to the Secretary of the Interior, who, after a consideration of the evidence and the law, reversed the opinion of the Commissioner and dismissed Gentry's protest, holding that prior to the hearing he had not acquired the status of an occupant of the lands, as against the subsisting occupancy of the company. Hyde's selections, however, were not finally approved, but further proof was required to be made by the company to the effect that the selected lands were, at the time of filing the proof, still nonmineral in character, and not occupied adversely to said company.

For what particular purpose this decision was offered by plaintiff the record does not disclose, but it is now argued by its counsel that it is conclusive and binding upon the parties and their privies upon all questions of fact therein considered and determined, and as the Secretary therein concludes that Gentry was in the employment of the plaintiff and, as its servant, was in possession of the lands in controversy from 1894 until after the selection of the lands by Hyde in April and October, 1898, his possession was the possession of his principal, the plaintiff, and therefore it could not be adverse to it in good faith; that such determination is binding and conclusive upon courts having under consideration the determination of disputes between the same parties arising out of the same facts. It has been held by this court in Sanford v. Sanford, 19 Or. 3, 13 P. 602, that as to all matters of fact, within the scope of the authority of the officers of the Land Department of the...