Skelly v. Warren

Corson, J. The plaintiffs, claiming to be the owners of a quartz-mining claim in Lead City, brought this action to recover possession of a portion thereof held by the defendant, and to enjoin the defendant from moving a certain building therefrom which had been partially erected by his grantor and completed by himself. A verdict was directed by the court in favor of the plaintiffs, upon which a judgment was entered, and from the order denying a new trial the defendant has appealed. The action to recover the possession of the premises is in the usual form, and the plaintiffs joined with the same a cause of action, alleging, in substance, that the defendant was about to remove from the premises the building erected thereon, and prayed that he might be enjoined from so doing. The defendant in his answer by way of counterclaim, alleges that “on the 2d day of October, 1899, this defendant purchased of one E. T. Morgan the premises in controversy in [28] this action, being the housé and lot, for the sum of $175, which amount was paid in cash, and under the belief that this defendant’s grantor, who was then in possession of the premises, was the owner and had good right and authority to sell and convey the same, and at all times acted in good faith, and under the belief that the defendant was the owner thereof; and, while holding under color of title thus acquired, made valuable and substantial improvements upon the said lot, by enlarging the house thereon, and grading and surfacing up the said lot, and improving the same; that the improvements put upon the said lot by this defendant were reasonably worth the sum of six hundred dollars, and that the lot has been improved by the improvements made thereon. Wherefore this defendant prays: That the plaintiffs take nothing by their suit; * * * that the court adjudge and decree the value of the improvements placed thereon by this defendant; and th.at the cout render its judgment against the plaintiffs for the said amount.” On the trial the defendant sought to introduce in evidence the deed from his grantor to himself, and also to prove all the facts and circumstances connected with the making of the improvements; but this evidence Was, on objections of the plaintiffs, excluded by the court. The appellant contends that, in excluding this evidence and directing a verdict for the plaintiffs, the court committed error for which a new trial should be granted. It is insisted, however, on the part of the plaintiffs, that the counterclaim set up by the defendant does not state facts sufficient to constitute a defense or counterclaim to the action; that the deed offered does not purport to convey a fee-simple title; and that, a's the premises in controversy constitute apart [29] of a mining claim, the respondent could not have made his improvements in good faith and under color of title, for the reason that he was charged with the knowledge that such property is not subject to location for residence purposes. Undoubtedly, the plaintiffs are right in their contention that the defendant was not entitled to recover the value of his improvements under the provisions of sections 5455, 5456, Comp. Laws Dak. 1887, for the reason that he was notified by his deed, and admits in his testimony, that he knew that his grantor did not claim to be the absolute owner of the premises, and only held the same by a general license from the Home-stake Mining Company. The deed offered in evidence contains the following clause: “And all is situated on Homestead ground.” And the title to the property acquired by him under his deed is thus described by the defendant, in his testimony: “At the time I purchased the property I did not know from any source that it was claimed by the plaintiffs in this action. I supposed it was Homestake ground as the deed says; I mean, ground that the Homestake had given permission to others to occupy. * * * The whole of Lead City is built that way. Permission is given by the Homestake Company to put up buildings, and that kind of title is given, which we regard as just as good as a. warranty deed, unless the Homestake needs the ground for actual mining purposes, and under these circumstances there is an understanding that a person must move his buildings off so as to have them out of the way of the Homestake Company. The whole o.f Lead City is built up with the kind of title that I have bought here. We regard it as perfectly good.” Such a deed clearly constitutes no color of title under the statute (Seymour v. Cleveland, 9 S. [30] D. 94, 68 N. W. 171; 1 Ency. of Law (2d Ed.) 857; 1 Cyc. 1085). and was properly excluded, as was also all the evidence as to the nature and character of such improvements. It is contended, however, by the defendant that, the cause of action for an injunction being an equitable one, the court was authorized to give him the benefit of his improvements upon equitable grounds, independent of the statute, by requiring the plaintiffs to either pay him the value of the improvements or allow him to remove the same from the premises, as the improvements are claimed to have been made by the defendant and his grantor under a mistake make by the defendant while acting in good faith, and the plaintiffs, though having knowledge that the improvements were being made, gave the defendant no notice that they- claimed the property. This is undoubtedly a correct statement of the law applicable to this class of cases when the pleadings are so framed as to admit the proper evidence. In speaking upon this subject, Mr. Justice Story, in his work on Equity Jurisprudence, says: “So if the true owner stands by and suffers improvements to be made on an estate without notice of his title, he will not be permitted in equity to enrich himself by the loss of another, but the improvements will constitute a lien on the estate.” 2 Story’s Eq. Jur. (12th Ed.) § 1237. But it will be noticed that no such defense or counterclaim is set up in the answer. The answer was evidently drawn oh the theory that the defendant had the right to recover the value of his improvements under the statute, and no equitable ground for recovery was alleged therein. In the absence of an answer setting up an equitable defense or counterclaim, the court was clearly right in excluding the evidence, and, plaintiffs’ title to the premises being undisputed, [31] the court was clearly right in directing a verdict for the plaintiffs. There being no error in the record, the judgment of the circuit court and order denying a new trial are affirmed.