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Halko v. Anderson

Supreme Court of Montana
Jun 27, 1939
93 P.2d 960 (Mont. 1939)

Opinion

No. 7,855.

Submitted February 8, 1939. Resubmitted May 3, 1939.

Decided June 27, 1939.

Quieting Title — Farm Lands — Granting Writ of Possession — When Trial Court Should Require Compensation to be Made to Defendants for Interest in Growing Crops as Condition Precedent to Issuance of Writ. 1. Where, in an action to quiet title to agricultural lands, the district court granted plaintiff a writ of possession and on appeal the court was directed to deny the writ, and thereafter on rehearing the writ was held to have been properly granted, but in the interim of about four months the defendants may have remained in possession and planted crops on the lands in controversy, the trial court, before issuing the writ, should ascertain if such crops were planted, and, if so, require plaintiff to make adequate compensation to defendants for their interest in them.

Appeal from District Court, Judith Basin County, Stewart McConochie, Judge.

Mr. H.O. Vralsted, for Appellants, submitted a brief and argued the cause orally.

Mr. O.B. Kotz and Mr. H. Norskog, for Respondent, submitted a brief; Mr. Kotz argued the cause orally.


This is an appeal from an order granting a writ of possession. The order was made after final judgment entered by the district court in the companion case numbered 7816, this day decided.

The writ of possession was properly issued by the trial court [1] under the conditions then existing, by virtue of section 9081, Revised Codes, reading: "In an action brought by a person out of possession of real property, to determine an adverse claim of an interest or estate therein, the person making such adverse claim and the persons in possession may be joined as defendants, and if the judgment be for the plaintiff, he may have a writ for the possession of the premises, as against the defendants in the action against whom the judgment has passed." (And compare Doggett v. Johnson, 82 Mont. 338, 267 P. 292.) However, this court on the appeal of this and the companion case No. 7816, by an opinion rendered on February 28 in cause No. 7816 reversed the judgment of the district court and remanded the cause for a new trial, and in this case directed the court to set aside the order for the issuance of the writ of possession and to enter an order denying it.

In due time plaintiff filed a motion for rehearing in both cases, which after consideration were granted and the causes were reargued in this court on May 3. In companion case No. 7816 we are now affirming the judgment. During this time defendants, so far as we are entitled to assume, have remained in possession and, presumptively, have planted crops on the land in controversy. If we are correct in these assumptions, it would obviously be improper, under the circumstances, to grant plaintiff the right of possession without recognizing the rights of defendants in the growing crops.

This matter will be remanded to the district court with directions to hear further proof as to whether defendants have put in a crop on the lands or any part thereof on the strength of our former opinion. If they have, and if the parties are unable to agree upon a reasonable rental of the property to be paid by defendants to plaintiff for such further time as is needed to remove the crops, then before plaintiff is entitled to a writ of possession he must make adequate compensation to defendants for their interest in the growing crops, if any. It is so ordered.

MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES MORRIS, STEWART and ERICKSON concur.

Rehearing denied September 26, 1939.


Summaries of

Halko v. Anderson

Supreme Court of Montana
Jun 27, 1939
93 P.2d 960 (Mont. 1939)
Case details for

Halko v. Anderson

Case Details

Full title:HALKO, RESPONDENT, v. ANDERSON ET AL., APPELLANTS

Court:Supreme Court of Montana

Date published: Jun 27, 1939

Citations

93 P.2d 960 (Mont. 1939)
93 P.2d 960