Turner v. Kennedy
| Decision Date | 20 April 1894 |
| Docket Number | 8816 |
| Citation | 58 N.W. 823,57 Minn. 104 |
| Parties | Henry Turner v. William C. Kennedy |
| Court | Minnesota Supreme Court |
Submitted on briefs April 11, 1894.
Appeal by defendant, William C. Kennedy, from an order of the District Court of Marshall County, Frank Ives, J., made April 21, 1893, granting the motion of plaintiff, Henry Turner, for a new trial.
In the fall of 1889, plaintiff built a portable frame dwelling house sixteen feet long by fourteen feet wide on the land of a railroad company with its license. The house was built on skids or timbers hewed in the shape of sleigh runners resting on boards lying on the ground. It was worth $ 80 or $ 90. The railroad company brought ejectment and put plaintiff off the land in April, 1891, and sold the land to Elizabeth Kennedy defendant's wife. Plaintiff left the house in the care of his brother Thomas. He without authority soon after gave defendant possession of the house and he moved into it and built an addition to it. On January 6, 1892, plaintiff demanded the house and was prepared to remove it. Being refused he brought replevin for it in Justice's Court and had judgment. Defendant appealed to the District Court where the issues were retried and defendant had a verdict by direction of Hon. Ira B. Mills, J. Plaintiff made a motion before Hon. Frank Ives, successor of Judge Mills, and obtained an order for a new trial. From that order defendant appeals.
The order appealed from is reversed.
William Watts, for appellant.
On the facts the house became a part of the realty. Little v Willford, 31 Minn. 173; Howard v. Fessenden, 14 Allen, 124; McLaughlin v. Nash, 14 Allen, 136; Bonney v. Foss, 62 Me. 251; Washburn v Sproat, 16 Mass. 449; Huebschmann v. McHenry, 29 Wis 655.
Plaintiff by laches in not removing the house prior to the time he demanded it lost all right to it. Erickson v. Jones, 37 Minn. 459; Smith v. Park, 31 Minn. 70.
William C. Brown and H. W. Brown, for respondent.
The house was personal property and could be removed. Little v. Willford, 31 Minn. 173; Ingalls v. St. Paul, M. & M. Ry. Co., 39 Minn. 479.
The railway company in 1887 gave the Turner Brothers a license to enter on the land and build. There is nothing in the evidence to show that this license was ever revoked until April 15, 1891, at which time it was impliedly revoked by the ejecting of the Turner Brothers from the land. After that the plaintiff had a reasonable time in which to remove the house. Ingalls v. St. Paul, M. & M. Ry. Co., 39 Minn. 479.
But on the same day that the license was thus revoked the railway company turned the possession and control of the land over to defendant and on the same day defendant asked plaintiff's brother, Thomas Turner, for the use of the house in controversy until after breaking season, and stated that he would leave after that time and plaintiff could then have his house back again. With this understanding Thomas let defendant have the house, and defendant and his wife continued to occupy it until it was taken under the writ in this action. These acts on the part of defendant constitute a new license to keep the house on the land, and this new license continued right up to the time the house was demanded.
When the evidence closed the case should have been submitted to the jury. There was evidence to support a verdict for plaintiff and the court erred in directing a verdict for the defendant.
Canty, J. Buck, J., absent, sick, took no part.
In 1887 the plaintiff and his brothers entered into negotiations with the St. Paul, Minneapolis & Manitoba Railway Company, by which they got leave to build on a certain eighty acres of land which was claimed by it as indemnity land, but for which it had at that time no patent. Plaintiff built the house in question, and he and his brothers made other improvements on the land. After the railway company procured its patent and had some further negotiations with the Turners for the sale of the land to them, it commenced an action of ejectment against them, procured judgment, and executed a writ of ejectment on the 15th of April, 1891, by which it got possession of the land. A few days before this, the railway company had sold the land to Elizabeth Kennedy, the wife of the defendant, and, upon obtaining possession of the land, it immediately turned the possession over to her. When the writ was executed, the house in question was vacant, and there was no one present upon the land except Thomas F. Turner plaintiff's brother, who on the same day made a lease with defendant, whereby defendant in his own...
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