Opinion
No. 9542.
December 31, 1965.
APPEAL FROM SEVENTH JUDICIAL DISTRICT COURT, CANYON COUNTY, GILBERT C. NORRIS, J.
Dunlap, Rettig Rosenberry, Caldwell, for appellant.
Gigray, Boyd Downen, Caldwell, for respondents.
"The gist of trespass is the injury to possession. Forcible entry or forcible detainer is something more than a mere trespass." Dahlquist v. Mattson, 40 Idaho 378, at page 388, 233 P. 883; 52 Am.Jur. Sec. 25, (Trespass) at page 854.
"The unlawful detainer statute does not exempt a tenant of agricultural lands from being guilty of an unlawful detainer when he holds over after the expiration of the term of his lease. The statute simply provides that where the tenant has held over, and retained possession for a period of sixty days, without any demand of possession or notice to quit, he shall be deemed to be holding by permission of the landlord, and shall be entitled to hold for another full year, and shall not be guilty of any unlawful detainer during the said year." Johnston v. Schmidt, 76 Idaho 470, page 472, 285 P.2d 476.
"A plaintiff may maintain trespass for injury to his possession only when he is in actual possession, and so alleges, or where he is the owner of the fee, and further shows by his petition that the land is unoccupied, and the plaintiff has the constructure possession thereof." Steltz v. Morgan, 16 Idaho 368, at page 374, 101 P. 1057, 28 L.R.A., N.S., 398.
"A surrender is a yielding up of an estate for life or years, to him who hath the immediate estate in reversion, or remainder, wherein the estate for life or years, may drown by mutual agreement." Tiffany on Landlord and Tenant, Sec. 187; Jones on Landlord and Tenant, Sec. 538; Elliott v. Gentry, 40 N.M. 358, 60 P.2d 203, at page 206.
"The burden is on the party relying on the surrender of a lease to prove it, and where it is to be inferred from circumstances inconsistent with intention to perform, the proof must be clear." Elliot v. Gentry, supra.
"To establish termination of such a tenancy by surrender in fact, the proof must be clear and unequivocal. An agreement to surrender, not executed, does not effect a surrender by operation of law." Elliott v. Gentry, supra.
"It is elementary that an abandonment of any right is dependent upon an intention to abandon and must be evidenced by a clear, unequivocal and decisive act of the party." Sullivan Const. Co. v. Twin Falls A. Co., 44 Idaho 520, at page 526, 258 P. 529; Perry v. Reynolds, 63 Idaho 457 at page 464, 122 P.2d 508.
"There is, however, another kind of abandonment which is actual, not dependent upon length of time, the essential element of which is intent to leave, quit, renounce, resign, surrender, relinquish, vacate, * * discard, * * *. `Abandon' denoting the absolute giving up of an object, often with the further implication of its surrender to the mercy of something or someone else." Carrington v. Crandall, 65 Idaho 525, at page 532, 147 P.2d 1009.
The findings of fact must be supported by the pleadings, and if not within the frame work of the pleadings and issues raised thereby the judgment is erroneous. Carson v. Thews, 2 Idaho 176, 9 P. 605; Peters v. Bow, 45 Idaho 303, 262 P. 149; Uhrlaub v. McMahon, 15 Idaho 346, 97 P. 784.
On a motion to dismiss at the close of the plaintiffs' case, the evidence and all inferences reasonably to be drawn therefrom must be viewed in the light most favorable to the plaintiff. Shaw v. Missouri Pac. R. Co., D.C., 36 F. Supp. 651.
"A surrender is a yielding up of an estate for life or years, to him who hath the immediate estate in reversion, or remainder, wherein the estate for life or years, may drown by mutual agreement." Elliott v. Gentry, 40 N.M. 358, 60 P.2d 203.
"A tenancy from year to year may be terminated by a surrender, which may be effected by express words evincing such agreement, or may be implied from conduct of the parties going to show that they have both agreed to consider the surrender as made." 51 C.J.S. Landlord and Tenant § 143, page 746.
"A surrender by operation of law arises when the minds of the parties concur in the common intent of relinquishing the relation of landlord and tenant, and this intent is executed by acts which are tantamount to a stipulation to put an end thereto." 51 C.J.S. Landlord and Tenant § 143, page 746.
"As implied in the definition of the term, surrender extinguishes all interest of the tenant in the term and consequently all rights conditioned upon its continuance." 32 Am.Jur., Landlord and Tenant, Sec. 900, page 762.
"When a tenant makes an unequivocal surrender of the premises, the leaving of fixtures and worthless articles on the premises may not be construed as an intention to retain possession, or a continuance of the tenancy arising from the fact of the tenant remaining in possession. The abandonment of the premises by a tenant non animo revertendi remits the landlord to the possession and he may defend it against all intrusion." 51 C.J.S. Landlord and Tenant § 143, page 746.
"* * * abandonment is the relinquishment of a right by the owner thereof without any regard to future possession by himself or any other person, but with the intention to forsake or desert the right." Union Grain Elevator Co. v. McCammon Ditch Co., 41 Idaho 216, 240 P. 443.
"To abandon land, there must be a concurrence of the act of leaving the premises or property vacant and unoccupied, and the intention of not returning." 1 C.J.S. Abandonment § 3, page 8.
"Abandonment is a question of intention and may be proved by the acts and conduct of the party alleged to have abandoned the property * * *." Weideman v. Staheli, 88 Cal.App.2d 613, 199 P.2d 351.
"It is obviously impossible to lay down any specific rule as to the particular nature or character of the acts which must be done to constitute or effectuate an abandonment — but, generally speaking, any voluntary act intended as a disownership and in full relinquishment of property or a right amounts to an abandonment, or loss of the actor's title or interest, so as to bar him from further claim to the thing abandoned." 1 C.J.S. Abandonment § 3, page 9.
"The giving of a notice to terminate a tenancy from year to year may be waived by the parties. Where the tenant waives notice to quit and goes out of possession, he has no right to return thereto." 51 C.J.S. Landlord and Tenant § 142f, page 745.
"The law does not require the doing of a vain or useless, act, nor does the failure to do such an act constitute a waiver of legal rights, or defeat a right otherwise conditioned on such act." Title Trust Co. v. Durkheimer Inv. Co., 155 Or. 427, 63 P.2d 909.
"The burden of proving a surrender is upon the party alleging it." 32 Am.Jur., Landlord and Tenant, Sec. 900, page 762.
"Trespass is an injury to the estate, or use thereof, by one who is a stranger to the title." Dahlquist v. Mattson, 40 Idaho 378. 233 P. 883.
"A plaintiff may maintain trespass for injury to his possession only when he is in actual possession, and so alleges, or where he is the owner of the fee, and further shows by his petition that the land is unoccupied, and the plaintiff has the constructive possession thereof." Steltz v. Morgan, 16 Idaho 368, 101 P. 1057, 28 L.R.A., N.S., 398.
In 1959 Lester C. Gartin, defendant-appellant herein, entered into an oral agreement to rent from Lewis E. Griffiths, on a year-to-year basis, certain farmlands referred to as the "Griffiths Farm." They agreed to share most of the farm expenses and to divide the profits. The annual lease was to terminate on December 31 of each year.
In 1961 Gartin purchased a mobile trailer home and placed it approximately 50 yards from the main farmhouse. Gartin and his wife moved out of the main house and into the trailer and thereafter, except for very hot summer days, lived therein. In May 1963 Griffiths sold the farm to the Iests, plaintiffs-respondents herein.
During the fall of 1963 the only farm operation performed by Gartin was the harvesting. During the fall of 1963 Gartin did no preparation of the land for the crop year of 1964. William Iest, son of the respondents, and an employee, Frank Smart, plowed and fertilized approximately 80 acres of the farm during the fall of 1963. Gartin was aware of these activities and made no objection. In addition, Gartin advised respondents' employee as to how some of the fields should be irrigated.
In early October 1963 Gartin advertised in the local newspaper that "as we are leaving the farm we will sell all the dairy cattle and machinery at the farm." At the sale all of Gartin's cattle, some of his household furniture, and most of his farm equipment were sold. Gartin moved most of his remaining possessions to Missouri in December 1963.
Iest and his son testified that Gartin, prior to his trip to Missouri, asked permission to leave the trailer house on the premises "until he got settled with Mr. Griffiths." The Iests granted this request. Gartin did not deny that this conversation took place.
Gartin's reference to settling with Griffiths involved a dispute between the two concerning payment of certain expenses for the farming operations from 1959 to 1963. Because the two could not resolve their differences, the matter was submitted to arbitration. It was not settled until March 1964. There was evidence that Gartin stated he intended to move to Missouri as soon as the dispute with Griffiths was settled.
In the late summer or early fall of 1963, Gartin applied to the Farmers Home Administration for a loan for the purpose of buying a farm in Missouri. The F.H.A. advised against the loan, although the record does not reveal when this occurred.
When Gartin and his wife returned from Missouri early in 1964, they continued to live in their trailer house located on the Griffiths farm.
During March 1964 William Iest began preparing the farmland for planting and seeding. Shortly thereafter he seeded and planted the farm for the forthcoming crop season. At about this time Gartin informed William Iest that he intended to plant grain on the Griffiths farm with machinery he borrowed and asked William Iest to "hold off on the farming until we could find out who was supposed to be farming." William Iest testified that this was the first knowledge he had that Gartin planned to work the farm in 1964.
On April 3, 1964, the plaintiffs instituted this action, alleging that:
"* * * defendant wrongfully and unlawfully entered into and upon the plaintiffs' premises with intent to take and keep possession of plaintiffs' lands; * * * that the said defendant claims the right to continue farming contrary to the right of the plaintiffs herein."
"That the defendant threatens and intends to continue said unlawful acts and to further trespass upon the property of the plaintiffs * * *."
The plaintiffs asked that the defendant be enjoined and restrained from entering and trespassing upon their property and from interfering with their possession of the property.
The defendant's answer denied the allegations in the plaintiffs' complaint and alleged as an affirmative defense that he:
"* * * has been continuously in possession of the said real property since January, 1959, as a tenant, and that he was in possession by virtue of a year to year lease running from January 1st to December 31st, and that the said lands are agricultural lands and that the defendant has held over and retained possession of the said land for more than sixty days after the expiration of his term, without any demand of possession or notice to quit by the plaintiffs, as required by law, under the provisions of Title 6, Chapter 3 of the Idaho Code for 1947."
The district court, sitting without a jury, found:
"That it is disclosed by evidence that is clear and convincing that the defendant intended to abandon and did actually abandon the premises and did not hold over on said premises * * * pursuant to the provisions of Section 6-303, Idaho Code."
The court enjoined the defendant from interfering with the plaintiffs' possession of the farm property and farmlands but found no unlawful possession of that part of the property on which the defendant's trailer house was situated, the routes of ingress and egress thereto, or those parts of the property where his machinery and other personal property were stored.
Appellant argues that no notice was given to him to relinquish possession of the farmlands as provided by I.C. § 6-303. However, before that statute becomes operative, the tenant must have "held over and retained possession" of the premises. The trial court found that Gartin did not hold over or retain possession of the farmlands. This finding was evidenced by his conduct and various conversations wherein he stated that he intended to leave the premises and return to Missouri. Gartin thereby surrendered his leasehold interest by creating an understanding between the parties that the lease would be terminated. By such conduct he waived his right to notice from Iest to surrender possession and the respondents had the right to rely thereon and to enter the premises in 1963 to commence farming operations in preparation for the 1964 crop year. There was substantial, competent evidence in the record to support these conclusions
" 6-303. Unlawful detainer defined. —
* * *
"2. * * * In all cases of tenancy upon agricultural lands, where the tenant has held over and retained possession for more than sixty days after the expiration of his term without any demand of possession or notice to quit by the landlord, or the successor in estate of his landlord, if any there be, he shall be deemed to be holding by permission of the landlord, or the successor in estate of his landlord, if any there be, and shall be entitled to hold under the terms of the lease for another full year, and shall not be guilty of an unlawful detainer during said year, and such holding over for the period aforesaid shall be taken and construed as a consent on the part of a tenant to hold for another year."
The appellant relies upon the case of Elliott v. Gentry, 40 N.M. 358, 60 P.2d 203 (1936), in support of his contention that he did not surrender possession of the premises to the respondents. In that case, aside from other factual differences, that court found there was insufficient evidence to support a finding of surrender. It appears the only evidence on that issue was ambiguous statements of the tenant that if he could find another place, he would move. In the case before us, in addition to Gartin's statements of his intention to leave the Griffiths farm and move to Missouri, there were overt acts by him which unequivocally indicated his intention to relinquish possession of the farmlands, and the trial court so found. With this conclusion we agree.
The appellant asserts error in that the trial court failed to grant his motion for involuntary dismissal, pursuant to Rule 41(b), I.R.C.P., at the end of the plaintiffs' presentation of evidence "on the grounds that the plaintiff failed to prove either actual or constructive possession of the real property in the plaintiff, and failed to prove that the defendant made an actual unlawful entry upon the real property of the plaintiff." The plaintiffs proved ownership and right of possession of the property in question. Appellant claimed the right to continue farming thereon, which was contrary to the rights of the plaintiffs. I.C. § 8-402. Upon these facts the plaintiffs had shown a right to relief and the appellant's motion was properly denied.
"8-402. Grounds for injunction. — An injunction may be granted in the following cases:
"1. When it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually."
The appellant's other assignments of error relate to the correctness of the trial court's findings and conclusions and have been adequately discussed above.
The judgment is affirmed.
Costs to respondents.
McFADDEN, TAYLOR, SMITH and KNUDSON, JJ., concur.