Reed v. Lammel

• Decision Date: 30 April 1889
• Citation: 42 N.W. 202,40 Minn. 397
• Parties: A. H. Reed v. Edward Lammel
• Court: Minnesota Supreme Court

42 N.W. 202

40 Minn. 397

A. H. Reed v. Edward Lammel

Supreme Court of Minnesota

April 30, 1889

Appeal by plaintiff from an order of the district court for McLeod county, Edson, J., presiding, refusing a new trial.

Order reversed.

R. M McClelland, for appellant.

Peck & Brown, for respondent.

OPINION

Vanderburgh, J.

This action is for the value of buildings alleged to have been wrongfully removed from plaintiff's premises, and for the use and occupation thereof by defendant. He had previously recovered judgment in an action of ejectment against the defendant, in which action the title was finally adjudged to be in him. The substance of the defence is that the defendant erected the buildings upon the land in good faith, under color of title, and having good reason to believe that the title to the same had vested in him, without any notice of any adverse claim, and that he was accordingly entitled to remove the buildings within 60 days after the rendition of the judgment referred to, in pursuance of Gen. St. 1878 c. 75, § 14. He also claims that the evidence tends to show that subsequent to the judgment, and by reason of negotiations pending between the parties for the purchase of the land upon which the buildings were erected, his continued possession and occupancy were under the license of the plaintiff, and that the time and opportunity for removing the buildings was extended. Upon the trial the evidence was insufficient to bring the case within the section of the statute referred to. The deed which defendant claims to have given him a colorable title is not in evidence. There is nothing in the record to show that he entered or made the improvements under color of title, or that the buildings did not become and remain part of the freehold and the property of the owner of the land. So far as the question of the right to recover for the use and occupation is concerned, if the defendant remained in possession under a parol license simply, until the license was revoked he could be treated neither as a trespasser nor a tenant, and for such length of time the plaintiff could not recover damages. But the special findings do not cover all the issues, and the general verdict was for the defendant. The plaintiff was not, therefore entitled to judgment upon the verdict. The general verdict is not supported or warranted by the evidence, but this is not assigned as error by the plaintiff. He, however,...