E. v. Sayers

• Decision Date: 12 March 1910
• Docket Number: 16,413
• Citation: 82 Kan. 123,107 P. 641
• Parties: E. V. SAYERS, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

107 P. 641

82 Kan. 123

E. V. SAYERS, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

No. 16,413

Supreme Court of Kansas

March 12, 1910

Decided January, 1910.

Appeal from Franklin district court; CHARLES A. SMART, judge.

Judgement reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PARTIES -- Action for Injury to Growing Crop by Landlord Who is to Receive Crop Rent. A landlord who is to receive a share of the crop as rent may maintain an action without joining the tenant and recover from a railway company which obstructed a river, resulting in flooding the land and injuring and destroying part of the crops growing thereon but can only recover to the extent of his share.

2. DAMAGES -- Destruction or Injury to Growing Crop. The measure of damages for the destruction of a growing crop is the value of the crop in its condition at the time and place it was destroyed, and, if only injured, it is the difference in value before and after the injury.

B. P. Waggener, and J. M. Challiss, for the appellant.

F. M. Harris, for the appellee.

JOHNSTON, C. J. BENSON, J., not sitting.

OPINION

JOHNSTON, C. J.:

E. V. Sayers, who owned a farm and a half interest in a crop growing thereon, brought an action against the Missouri Pacific Railway Company to recover damages caused by the alleged negligence of the railway company in obstructing the Marais des Cygnes river and thus throwing the water back on the Sayers farm and destroying part of his crop. The case was tried with a jury, which returned a verdict in favor of Sayers for $ 250, and from the judgment rendered thereon the railway company appeals. It appears that in the early part of 1906 the railway company undertook to repair a bridge across the river near Ottawa, and in doing so placed two lines of piles across the river and fastened them together with timbers and braces. In June, 1906, when heavy rains fell, large quantities of drift and debris were carried down the river and lodged against the piles and bridge, thus forming an obstruction which resulted in overflowing Sayers's farm and injuring his crop. The farm adjoined the river, and had been leased to a tenant on condition that Sayers, the landlord, should receive as rental one-half of the wheat and corn grown on the place. The overflow, alleged to have been negligently caused by the railway company, injured the crop of the tenant as well as that of the landlord, but in this action Sayers only asked for the loss which he had sustained. There was testimony tending to show that the water was two or three feet higher above the obstruction made by the piling and bridge than it was below it, and that after the obstruction was washed out by the force of the current the water thrown back on Sayers's farm lowered rapidly. From the testimony it also appeared that on other occasions when the flood water reached the same general level in that region, and there was no piling to obstruct the flow, the water did not back upon and overflow the Sayers farm.

It is contended on this appeal that Sayers was not entitled to any damages; that his tenant was the owner of the crop, and that until the landlord's share was severed and set apart to him he had no such interest in the crop as would warrant him in bringing an action for injury to any part of it. Many authorities are cited to show that, as between the landlord and the tenant, the latter is entitled to the possession of the rented land until the crop is grown and the landlord's share delivered in accordance with the contract of lease, but no question as to the right of possession as between landlord and tenant arises here. Both have an interest in the crop, and are in a sense tenants in common of the crop until a division is made, but each has an ownership which he has a right to protect. (Dodson v. Covey, 81 Kan. 320, 105 P. 519.) The statute defines the kind of interest a landlord has where the rental is a share of the crop grown. It provides that "when any such rent is payable in a share or certain proportion of the crop the lessor shall be deemed the owner of such share or proportion, and may, if the tenant refuse to deliver him such share or proportion, enter upon the land and take possession of the same, or obtain possession thereof by action of replevin." (Gen. Stat. 1868, ch. 55, § 25; Gen. Stat. 1901, § 3869.) This provision gives the landlord an individual ownership in the crop, and for an injury to that interest he can recover without joining the tenant as plaintiff. In Larkin v. Taylor, 5 Kan. 433, it was held that a tenant might recover against a wrongdoer for the loss of a crop without making the landlord plaintiff in the proceeding, but it was further held that he could only recover for his own interest. The landlord is likewise limited in his recovery to the damage done to his share, and this he may have without awaiting the cooperation of a tenant, who is not a necessary party in bringing an action against the wrongdoer, and whether he is a proper party it is not necessary to determine. (Neal v. Ohio River R. Co., 47 W.Va. 316, 34 S.E. 914; Texas & Pacific R'y Co. v. F. W. Saunders, 4 Tex. Civ. Cas. 528; Gulf, C. & S. F. Ry. Co. v. Caldwell [Tex. Civ. App. 1907], 102 S.W. 461; Atlanta & B. Air Line Ry. v. Brown [Ala. 1908], 158 Ala. 607, 48 So. 73.)

The only other question which appears to have been presented on the motion for a new trial is whether the court applied the proper measure of damages for the injury to, or loss of, the growing crop. The railway company asked for an instruction that if the issues were found for the plaintiff he could only recover one-half of the value of the crop destroyed at the time the damage occurred. Instead of this measure the court instructed that "the plaintiff alleges in his petition that he had rented this land to tenants, and that it was planted in wheat and corn, and he claims that h...