Straight Bros. Co. v. Chicago, Milwaukee & St. Paul Railway Co.

• Decision Date: 20 May 1918
• Docket Number: 31412
• Citation: 167 N.W. 705,183 Iowa 934
• Parties: STRAIGHT BROS. COMPANY, Appellee, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

167 N.W. 705

183 Iowa 934

STRAIGHT BROS. COMPANY, Appellee, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant

No. 31412

Supreme Court of Iowa, Des Moines

May 20, 1918

Appeal from Pocahontas District Court.--D. F. COYLE, Judge.

ACTION to recover damages for overflow. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.

Affirmed.

T. F Lynch and Hughes, Sutherland & Taylor, for appellant.

Kenyon Kelleher, Price & Hanson, for appellee.

PRESTON C. J. WEAVER, EVANS, and GAYNOR, JJ., concur.

OPINION

PRESTON, C. J.

The petition was filed in September, 1914, and is to recover damages for flooding plaintiff's land, and injury done to the crop thereon in the year 1913. Referring only to the issues which seem to be controlling, it is alleged, substantially, that, prior to the year 1912, a drainage district was established, and tile crossing plaintiff's land crossed defendant's right of way; that the tile at that point was 22 inches in diameter; that plaintiff, in rebuilding a bridge at said point, obstructed said ditch and drain by driving through said tile line four large piling, each 14 inches in diameter, thereby obstructing the same and reducing its efficiency and capacity to carry off water from surrounding land, including plaintiff's; that the water was dammed up on plaintiff's land, drowning out the crops during the season of 1913; that, in addition thereto, the flooding caused an accumulation of foul weeds, caused the land to become sour, and resulted in permanent injury to the land; that for said season plaintiff had rented the land to one Johnson for a share of the crop, two fifths of such crop to go to plaintiff and three fifths to the tenant, Johnson. The lease provided, among other things, that the tenant was to pay and deliver to plaintiff, as rent, the two-fifths part of all the crops; that the small grain was to be threshed before November 1st, and the tenant had no right to remove any of the share of the crops belonging to plaintiff from the premises until the division was made. The first count of the petition asks damages for injury to plaintiff's land and its share of the crop. The second count makes similar allegations as to the flooding of the land, and alleges further, and the proof shows, an assignment to plaintiff by Johnson of his claim for damages against the company for the tenant's three-fifths share,--that the tenant was in possession of the lands for the year 1913. Plaintiff asked $ 3,000 damages on both counts of the petition. The jury allowed $ 1,750.

By an amendment to the petition, the plaintiff says, as to the first count, that 50 acres of corn ground were unplanted because of the wrongful acts of the defendant, and that about 55 acres which were planted were seriously damaged, resulting in loss to plaintiff on this account of $ 1,200; that plaintiff's oats crop was damaged $ 148; and as to the second count, it is alleged that the loss and injury to corn crop were $ 1,350, and loss and damage to the oats crop, $ 222.

The answer is in denial, and it says, further, as to each count of the petition, that plaintiff knew the situation, and knew of the break in the tile at the time it occurred; and that, by the expenditure of a nominal amount, it could have prevented the injury, and for that reason it is not entitled to recover; and further, that, if plaintiff's premises were flooded at all, it was not due to the breaking of any tile, but to the insufficient drainage system, as constructed by the drainage district.

It is stated by appellant in argument that the principal errors relied upon for a reversal have reference to the admission of testimony, and instructions to the jury. A considerable part of the argument by counsel for both sides is in regard to the question as to whether plaintiff can recover on the first count, as the owner of the land, for injury to its two-fifths share of the crop. At the close of all the testimony, defendant moved the court to withdraw from the consideration of the jury any right of the plaintiff to recover under the first count for alleged loss to crops or damage to crops, because, under the issues and evidence, it is shown that such were not the property of the plaintiff, but, if the property of anyone, the property of the tenant, Johnson. The question was not otherwise raised in the trial court. The facts in connection with the different propositions will be stated briefly.

1. As to whether plaintiff can recover for its two-fifths share. Appellant concedes, in its reply argument, that this question may involve only a technical rule of pleading, but that they are entitled to have the rule observed. It is conceded by appellant that, under the statute, an action must be maintained by the real party in interest; but it contends that the owner of the land was not the real party in interest, as regards the crops that were growing upon the premises, and that the tenant was the only person entitled to sue on account of their injury or destruction. Appellee concedes, as we understand it, that this is the rule in some cases, but insists that, where the crop is to be raised by the tenant on shares, the rule does not apply, and that this is especially so since the suit was not brought until after the tenant's lease had expired, and the tenant has assigned to the landowner the damages to his share of the crop; and they say that, under such circumstances, the tenant could have no interest in the two-fifths share that would go to the landowner. It may be possible that it could be worked out by the tenant's suing as trustee for the owner of the land as to the landlord's share; but it seems to us that this would be an awkward way to go at it, and that such circumlocution is wholly unnecessary, as applied to the facts in this case. Appellant cites, on this point, Drake v. Chicago, R. I. & P. R. Co., 70 Iowa 59, 29 N.W. 804; Townsend & Knapp v. Isenberger, 45 Iowa 670; Rees v. Baker, 4 G. Greene 461; Blake v. Coats, 3 G. Greene 548; Alwood v. Ruckman, 21 Ill. 200; Baltimore & O. S.W. R. Co. v. Stewart, 128 Ill.App. 270, 274.

Appellee cites at this point, in support of its contention that plaintiff is the real party in interest and entitled to prosecute the action under a share rent lease, Riddle v. Dow, 98 Iowa 7, 66 N.W. 1066; Blunck v. Chicago & N.W. R. Co., 142 Iowa 146, 120 N.W. 737; Niagara Oil Co. v. Ogle, 177 Ind. 292 (98 N.E. 60); Gulf, C. & S. F. R. Co. v. Caldwell, (Tex. Civ. App.) 102 S.W. 461; Fuhrman v. Interior Warehouse Co., 64 Wash. 159 (116 P. 666); Doke v. Trinity & B. V. R. Co., 60 Tex. Civ. App. 106 (126 S.W. 1195); 24 Cyc. 1468.

We shall not attempt a review of all these cases, but content ourselves by referring to some of them, and our conclusion that appellee's cases, under the facts of the instant case, are controlling.

It is true, as contended by appellant, that, in the Drake case, supra, it was said that a landlord has no such interest in the growing crops of his tenant as to enable him to maintain an action against a person who injures the crop, and in the Townsend v. Isenberger case, supra, it was said that the share of the crops reserved by the lease to the landowner is to be regarded as rent. But these cases are distinguished in some of our later cases. It should be borne in mind, we think, that, in the instant case, there is no question of the right of possession of the crops grown on the leased premises, such as might arise in a controversy between the landlord and tenant. Under such a lease, there is no liability on the tenant's part to the landlord for the share which the landlord would have received had the defendant not flooded the land; the tenant has not agreed to pay the rent in money, nor is he obligated or bound to deliver any grain or other crops which he was prevented from growing by the alleged wrong of the defendant. The cases are referred to in Riddle v. Dow, supra, where it is said:

"It is undoubtedly true that the authorities generally hold that, where a tenant on shares has exclusive possession of the leased premises, the legal title to the entire crop grown thereon and the right to possess it are vested in him until the share which is to be delivered as rent is separated from the remainder of the crop; and some authorities hold that such ownership is exclusive. It will be found, however, that, in most cases of that character, the landlord, or person claiming through him, was endeavoring to assert a right of possession as against the tenant before a division of crops had been made, or that there had been a conveyance of the land before a maturity of the crops, and a claim made that the landlord's share did not pass by the conveyance. But the rules which control in such cases are not applicable to this case."

The Riddle case was a garnishment case, where it was held that a mortgage by a lessor upon his share-rent interest in the crop was paramount to a garnishment of the tenant. In that case, in speaking of the Townsend v. Isenberger case, the court said that what was said in regard to the ownership of the tenant was designed to show that the rent had not accrued, and was not payable until after the purchaser at the sheriff's sale had acquired title to the land; hence that the case was controlled by the rules that rent reserved by lease, not accrued, passes by a conveyance of the land, and that a purchaser under execution sale is entitled to the rent accrued or falling due after the execution of the sheriff's deed. And, in referring to Drake v. Chicago, R. I. & P. R. Co., supra, it was said:

"But the nature of the landlord's claim to the crops in that case is not shown. The point was decided without discussion by the court, apparently on the authority of Townsend v Isenberger. ...