Opinion
No. 55986.
February 11, 1946. Suggestion of Error Sustained in Part March 11, 1946.
1. PUBLIC LANDS.
The priority of renewal of lease given to a lessee of sixteenth section lands within a municipality does not extend to owners of leasehold of such lands outside of a city, town or village (Code 1942, secs. 6609, 6611).
2. PUBLIC LANDS.
Where purchaser of a lease of public school lands from plaintiff advised of superintendent of education that he did not care to renew lease, and thereafter lands were leased to defendant, effective as of expiration date of existing lease, plaintiff, upon procuring a reconveyance of lease in lieu of foreclosure against purchaser, had no right to demand a renewal in his name as against defendant (Code 1942, secs. 6609, 6611).
3. PUBLIC LANDS.
The rule that one who erects improvements upon lands of another, absent estoppel or other equitable rights, has no right to remove them, except trade-fixtures, applies to lessee of rural school lands.
4. PUBLIC LANDS.
Owner of lease of rural school lands, upon expiration of lease and the re-leasing thereof to another, had no right to recover the value of improvements erected on leasehold premises.
5. INJUNCTION.
Where lessee of rural public school lands established without contradiction that he was compelled to pay a monthly rental of $20 which would have been avoided had he not been enjoined from occupying premises he had leased in a suit instituted by former tenant, lessee was entitled to award of damages under the injunction.
6. INJUNCTION.
Solicitor's fees are not properly awarded where injunction is ancillary to other relief asked and where the entire matter is heard upon the merits, so that award thereof on dissolution of injunction in injunction suit ancillary to suit by former lessee of rural school lands to determine right to a renewal of lease was error (Code 1942, secs. 6609, 6611).
7. APPEAL AND ERROR.
Where solicitor's fees were erroneously awarded on dissolution of injunction and damages were erroneously disallowed. Supreme Court could not transfer award of solicitor's fees as a credit upon actual damages sustained from issuance of injunction.
ON SUGGESTION OF ERROR. (In Banc. March 11, 1946.) [25 So.2d 136. No. 35986.]APPEAL AND ERROR.
Where appellant's brief was concerned chiefly with merits of case dissolving injunction, and solicitor's fees were not mentioned, and upon main issue raised chancellor's finding was affirmed, order of affirmance would be corrected so as to affirm cause upon the merits, but reverse it upon allowance of solicitor's fees, and case would be remanded for hearing solely upon issue of damages to appellee arising out of denial of possession of property involved.
APPEAL from the chancery court of Hinds county, HON. V.J. STRICKER, Chancellor.
L.F. Easterling, Earle N. Floyd and J.E. Skinner, all of Jackson, for appellant.
It is appellant's contention here that he, as the owner of an expiring leasehold of a tract of sixteenth section school land, had a prior right to renew his lease, a right predicated upon sound equity jurisprudence, upon the openly declared policy of the superintendent of education and the board of supervisors of Hinds County, Mississippi, and upon the dictates of wise and sound public policy; that this right amounted to a valuable and well-defined property right as between himself and the appellee, E.T. Young, and that the said Young obtained his lease upon the tract with full, actual and constructive knowledge of all of appellant's rights and claims fifty-five days before the expiration of appellant's lease and fifty-five days before the expiration of appellant's right of renewal as openly defined by resolution adopted by the Hinds County board of supervisors; that Young's action in obtaining the lease, with full knowledge of appellant's rights, amounted to fraud, and that consequently the court below should have cancelled the purported lease to the appellee Young and have ordered the superintendent of education and the board of supervisors to renegotiate the letting of the lease, granting to appellant his full right of priority of renewal, or else to have held that the appellee Young held the lease under a constructive trust for the benefit of appellant and to have ordered the transfer of legal title to the appellant.
Risk v. Risher, 197 Miss. 155, 19 So.2d 484; Jackson v. Holt, 192 Miss. 702, 6 So.2d 915; Stark's Heirs v. Mather, Walk (1 Miss.) 181, 12 Am. Dec. 553; Phyfe v. Wardell, 5 Paige Ch. 268, 25 Am. Dec. 430; Day v. Galloway, 19 Ala. App. 130, 96 So. 365; Ullendorf v. Graham, 80 Fla. 845, 87 So. 50; Williams v. Nuld-Gordon, 96 Fla. 59, 97 So. 315; Aspinall v. Jones, 17 Mo. 209; 26 R.C.L. 1236.
There are exceptions and qualifications to the general rule that whatever is affixed to the land thereby becomes a part of the realty to which it adheres, and as between landlord and tenant the rule is applied with much leniency. Buildings placed upon plantation by tenants for use as trade fixtures, with intention of removing them at termination of lease, did not become a part of the freehold and were removable by tenants before expiration of their term.
Waldauer v. Parks, 141 Miss. 617, 106 So. 881.
Watkins Avery and Geo. S. Hamilton, all of Jackson, for appellee.
Appellant does not have a right to compel the appellees to lease to him this sixteenth section land.
A lessee of sixteenth section lands, outside a municipality, does not have a preference right to renew his lease under the Mississippi law.
Jones v. Madison County, 72 Miss. 777, 18 So. 87; Code of 1942, Secs. 6609, 6611; Laws of 1833, Ch. 64, p. 146.
A lessee of sixteenth section lands, outside a municipality, does not have an unqualified preference right to renew his lease under the board's declaration of policy.
Anderson-Prichard Oil Corporation v. McBride (Okla.), 109 P.2d 221; Bucknum v. Johnson (Wyo.), 127 P. 904; Kerrigan v. Miller (Wyo.), 84 P.2d 724; Baker v. Brown (Wyo.), 74 P. 94; Globe Brewing Co. v. Simon, 132 Ill. App. 198.
Only Joseph Roots and wife, and not the complainant, had the qualified privilege to renew the lease.
Jackson v. Holt, 192 Miss. 702, 6 So.2d 915, 918; Taylor v. King Cole Theaters, Inc., 183 Va. 117, 31 S.E.2d 260; American Mortgage Co. v. White (N.M.), 287 P. 702; Bradley v. General Store Equipment Corporation, 183 Misc. 199, 51 N.Y. Supp. 2d 420; Sisson v. Swift, 243 Ala. 289, 9 So.2d 891; 7 Thompson, Real Property (Perm. Ed.), Supp. Sec. 3845; Etheridge, "The After Acquired Property Doctrine and Its Application in Mississippi," 17 Miss. Law J. 153.
Joseph and Laura Roots waived the privilege to renew the lease which expired on March 30, 1945.
Hart v. Walker (N.M.), 52 P.2d 123; 35 C.J. 1022, Sec. 152; 3 Thompson, Real Property (Perm. Ed.), p. 369, Sec. 1266.
Complainant's negligence in exercising any privilege to renew which he claimed amounted to laches.
Comans v. Tapley, 101 Miss. 203, 57 So. 567; Marks v. Toney, 196 Miss. 572, 18 So.2d 452; Sample v. Romine, 193 Miss. 706, 8 So.2d 257; McLean v. Love, 172 Miss. 168, 157 So. 361; Griffith's Mississippi Chancery Practice, Sec. 33, p. 37, Sec. 41, p. 44.
Complainant cannot ask the aid of an equity court when he has failed himself to do equity.
Griffith's Mississippi Chancery Practce, Sec. 42, p. 45.
Complanant acquired no right to renew the lease by virtue of the deed executed to him by Joseph Roots and Laura Roots on February 14, 1945.
16 Am. Jur. 622, Sec. 326, note 12.
Complainant is not entitled to damages for the improvements which he placed on the land.
Liverpool London Globe Ins. Co. v. Fuston, 179 Miss. 809, 176 So. 913; Waldauer v. Parks, 141 Miss. 617, 106 So. 881; Kessler v. Grasser, 300 Ky. 89, 187 S.W.2d 1012; 36 C.J., Landlord and Tenant, Secs. 827, 834.
Appellant was the owner of an unexpired 99-year lease upon rural lands in a sixteenth section. The lease expired March 31, 1945. On May 23, 1942, Smith sold the lease to one Roots. In the fall of 1944, the board of supervisors and the county superintendent of education, through whom the leasing of such school lands is handled, inspected and appraised the lands here involved, together with other lands in the sixteenth section, with a view to the negotiation of new leases. To this end they consulted with Roots, whose ownership of the lands in question was verified from the assessment rolls.
After due consideration of the terms of the renewal, Roots decided that he did not care to renew the lease and so advised the superintendent of education. A renewal lease for four and three-fourth years was thereupon executed on February 6, 1945, in favor of the appellee, Young who was the first applicant therefor. Eight days later, Smith procured a reconveyance to him of the lease by Roots in lieu of a foreclosure of a purchase money deed of trust executed by Roots at the time of his purchase.
Shortly prior to the expiration of the existing lease, Young advised Smith of his ownership of the renewal and requested access to the premises with a view to making certain repairs and the like. Such request was vehemently refused by Smith, who shortly thereafter filed suit against Young, the board of supervisors and T.H. Naylor, the County Superintendent of Education.
Appellant's bill asked the following relief: (1) setting aside the proceedings by the board with mandatory injunction to compel reopening of the matter of renewal; (2) that Young be held as constructive trustee of the lands for the benefit of Smith; (3) an injunction restraining Young from interfering with Smith's occupancy and use of the property; and (4) an alternative prayer for award of the value of improvements erected by Smith. The prohibitory injunction was granted.
Upon the hearing of the whole matter, the chancellor dissolved the injunction, dismissed the bill and awarded Young damages by way of solicitor's fees in the sum of seventy-five dollars.
Smith appeals, and Young files his cross-appeal assigning as error the failure of the trial court to award him damages occasioned by his loss of the use of the property from and after March 31, 1945.
Under Section 6611, Code 1942, a lessee of sixteenth section lands within a municipality is given priority in the renewal of the lease. There is no such right granted to owners of such leaseholds outside of a city, town, or village. Section 6609, Code 1942.
We need not follow the arguments based respectively upon the contention that the actual owner of the lease, Roots, waived any rights, if such existed, and the opposing contention that Smith became, by subsequent reconveyance to him, the owner of the unexpired lease. Nor need we examine the effect of the informal Declaration of Policy which had been formulated by the board but never spread upon its minutes, pursuant to which the board was to favor the owner in negotiating a renewal. It is sufficient that Smith had no enforceable right to demand a renewal in his name. We find in the record no equitable basis for the recognition of a right which the law had not vouchsafed.
The rights of both Smith and Young to damages are settled by Waldauer v. Parks, 141 Miss. 617, 106 So. 881. It is there laid down that one who erects improvements upon the lands of another, absent estoppel or other equitable rights, has no right to remove them. The exception noted with reference to the conventional relation of landlord and tenant goes no further than a recognition of the right of a tenant before expiration of his lease to remove structures designed for the purposes of trade and for the tenant alone. Neither of these elements is here present.
Under Young's cross-appeal, he complains of the failure of the trial court to award him damages under the injunction, including loss and use of the property and a residence thereon. The testimony showed without contradiction that he was compelled to pay a monthly rental of twenty dollars which would have been avoided had he not been enjoined from occupying the premises he had leased. He files a conditional waiver of actual damages provided we uphold the award to him of counsel fees.
Solicitors' fees are not properly awarded where the injunction, as here, is ancillary to other relief asked, and where the entire matter is heard upon the merits. Capital Electric Power Association v. Franks, 199 Miss. 226, 23 So.2d 922. We are without power to transfer this award as a credit upon actual damages sustained, which latter are for the determination of the trial court. The denial by the learned chancellor of any actual damages, in view of the uncontradicted testimony of Young that he had sustained some damage, was contrary to the evidence.
Affirmed on direct appeal and reversed and remanded on cross-appeal.
ON SUGGESTION OF ERROR.
Appellants suggests that the order entered in this cause is inconsistent with the language and findings of the opinion. It is urged that since we reversed the allowance by the trial court of solicitors' fees, the cause at least to this extent should have been reversed.
Appellant's brief was concerned chiefly with the merits of the case. Solicitors' fees were not mentioned nor discussed, and upon the main issue raised by the appellant the chancellor's finding was affirmed. However, the fact remains that the order entered here merely affirms the cause on direct appeal. Consistency with the language and purpose of the opinion requires that the order be corrected so as to affirm the cause upon the merits, but reverse same upon the allowance of solicitors' fees, and remand for hearing solely upon the issue of actual damages to the appellee Young, arising out of denial of possession of the property involved.
So ordered.