Blinn v. Hutterische Society of Wolf Creek

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

On the day that this action was commenced, the affidavit of D. S Greenwood was filed on behalf of the plaintiffs, and thereafter, on the complaint and that affidavit and without notice to the defendants, an injunction was issued restraining the defendants, their agents and employees, from entering upon the lands described in the complaint, and from harvesting, threshing or removing the crops of fall wheat and rye, and from interfering in any manner with the plaintiffs in their use and occupation of the lands. Immediately upon service of the injunction and before answer was made, or required to be made, the defendants appeared specially, and moved the court to dissolve the injunction. X hearing was had, documentary evidence and oral testimony introduced by the respective parties,' and at the conclusion of the hearing an order was entered by the court dissolving the injunction, and plaintiffs appealed.

Upon the hearing these facts were established without controversy: On October 7, 1919, the defendant Hutterische Society, a corporation, and D. S. Greenwood, entered into a contract in writing, by the terms of which the society agreed to sell and convey to Greenwood certain lands, and to assign and transfer to him certain contracts for the purchase of addi *549 tional lands. The lands were all particularly described by government subdivisions, and comprised approximately 10,000 acres located in Fergus county. The contract provided further that upon its execution Greenwood should lease to the society certain of the lands, particularly described, the farming lands for a crop rental of one-third delivered in the elevator, and the grazing lands for a cash rental of $1,500 per annum, the first annual payment to be made on or before November 1, 1920. A limitation upon the duration of the lease was fixed, and the conditions and circumstances under which either party might terminate the lease before the expiration of the term were set forth in detail. The formal lease was never executed.

At the time the contract was signed on October 7, 1919, large areas of the land had been seeded to fall wheat by the society, and upon other large areas fall rye was growing. On January 16, 1920, the society conveyed the lands first mentioned above to Greenwood by quitclaim deed. These lands had been held by the society for the use and benefit of its members in Fergus county, who composed a colony of Mennonites. The number of persons in the colony is not given; but some time during the winter following, or in the early spring of 1920, all members, exciting defendant Stahl, the managing agent of the society, and defendant Walters and his family, removed to South Dakota, taking with them most of the livestock and farming utensils.

About April 23, 1920, Greenwood went upon and plowed up portions of the lands which had been in fall wheat and rye, and reseeded the same to spring crops, and thereafter plowed and planted other portions of the farming lands which were to be included in the lease, .and relet to third parties still other portions to be summer fallowed. About June 15, 1920, Greenwood conveyed to these plaintiffs all the lands which had been conveyed to him by the deed of January 16. When the fall wheat and rye were about to mature in the summer of 1920, plaintiffs and the society respectively prepared to harvest the crops. The society’s agent first commenced the actual work of harvesting, and plaintiffs instituted this action and secured the injunction. It is conceded that *550 all of the rye, and at least part, if not all, of the wheat, were produced upon the lands which were to be included in the lease.

In addition to these facts, established without controversy, the court had before it upon the hearing evidence .introduced by the plaintiffs which tended to prove that the rye was a volunteer crop; that the crops upon the ground reseeded had been winter-killed to such extent that good husbandry required that the ground be reseeded to spring crops; that the society had not done anything toward reseeding, or preparing other portions of the lands for spring crops, and was not prepared to summer fallow the remaining portions. The court also had before it evidence, introduced by the defendants, which tended to prove that the fall rye had been planted by the society, and was not a volunteer crop; that after the contract of October 7, 1919, was signed, the society planted about 130 acres of the fall wheat now in controversy; that the right to receive the lease was a material part of the consideration passing to the society for the - sale of the lands at the price agreed upon; that no part of the fall wheat or rye was winter-killed to such extent as to require that the ground be reseeded; that the society was in the actual and exclusive possession of all the lands mentioned on October 7, 1919, had been in such possession for several years- previously, and continued in such. possession of the lands to be included in the lease up to the time of the hearing, except that over their protests and objections, plaintiffs had plowed up and reseeded the ground heretofore referred to, and except, further, that by an executed oral agreement, entered into in the spring of 1920, Greenwood had taken over the grazing lands, and had released defendant society from the payment of the rental; and had relet the portion to be summer fallowed to third parties, and had released the society from doing that work; that defendants had made preparation to do all the work required to be done by the society, and had ample equipment for that purpose, or had contracted for the work to be done.

The coujrt also had before it the complaint in this action which alleges that these defendants continued in the posses *551 sion of the lands from the date of the deed—January 16, 1920 —to the date upon which the action was commenced, were then actually in possession, and threatened to continue, though it is alleged that their possession was unlawful. The court also had before it the affidavit of Greenwood, made on behalf of the plaintiffs, to the effect that he had read the complaint, “and that the matters therein stated are true.”

It was peculiarly the province the district court to pass [1] upon the credibility of the witnesses and ascertain what were the facts. The general order dissolving the injunction is in effect a finding in favor of defendants upon all material matters in dispute, and is conclusive upon this court, since we cannot say that the evidence preponderates against such finding.

For the purpose of simplification, these plaintiffs will be treated as the purchasers under the contract of October 7, 1919, since it appears that Greenwood was acting for them in all his negotiations, and the society will be treated as sole defendant, since it is apparent that Stahl and Walters are nominal parties only, joined in this action because they were the representatives of the society actually upon the lands when this action was commenced.

•Upon the facts found, this case was presented to the lower court: The plaintiffs, purchasers, never were in the actual or exclusive possession of the lands to be covered by the lease. The society, the vendor, was in actual and exclusive possession when it planted the crops in controversy and continued in possession of the lands upon which those crops were growing until the injunction was issued and served. The practical [2] effect of the injunction as issued was to oust the society from its possession and install the plaintiffs in possession, and for such a purpose injunction is not an available remedy. (Lacassagne v. Chapuis, 144 U. S. 119 , 36 L. Ed. 368 , 12 Sup. Ct. Rep. 659; Black v. Jackson, 177 U. S. 349 , 44 L. Ed. 801 , 20 Sup. Ct. Rep. 648 [see, also, Rose’s U. S. Notes]; Yellow Pine Export Co. v. Sutherland-Innis Co., 141 Ala. 664 , 37 South. 922 ; Hall v. Henniger, 145 Iowa, 230 , 139 Am. St. Rep. 412 , 121 N. W. 6 ; State Road Bridge Co. v. Circuit Judge, *552 143 Mich. 337 , 106 N. W. 394 ; Stout v. Williams, 203 Pa. 161 , 52 Atl. 169 .)

Counsel for plaintiffs, who were not of counsel at the time of the hearing, insist that plaintiffs secured possession when they went upon the land to do the reseeding and other work, and continued their possession thereafter until ousted by the society, when it commenced harvesting the crops, and, as we understand their contention, it is that the case made is one of threatened destruction of plaintiffs’ property by a willful trespasser, unable to respond in damages, and is within the rule recognized in Lee v. Watson, 15 Mont. 228 , 38 Pac. 1077 , and City of Bozeman v. Bohart, 42 Mont. 290 , 112 Pac. 388 . In so far as that contention involves the assumption that defendant society was ever out of possession, it is irreconcilable with the allegations of the complaint referred to above. We are not disposed to be hypercritical, however, and shall review the several other contentions presented in appellants’ brief.

It is urged that the relation of landlord and tenant never existed between the plaintiffs and the society, but that position cannot be maintained for three reasons: (1) If the contract [3] of October 7, 1919, contained the terms which were to be included in the lease, a valid, enforceable lease was thereby created, even though the parties contemplated that their agreement should be reduced to a more formal document (Long v. Needham, 37 Mont. 408 , 96 Pac. 731 ), and, so far as disclosed by this record, the contract for a lease did comprehend all that the parties intended to include in the lease. The suggestion now made by appellants that the contract of October 7, 1919, provides- only for an option for a lease cannot be urged seriously. The agreement for a lease is bilateral, and its obligations reciprocal. (2) The parties treated the contract as [4] though it created the relationship of landlord and tenant. In construing the provision for a lease the courts will look to the practical construction given it by the parties themselves, rather than to the particular phraseology employed. (Helena L. & Ry. Co. v. Northern Pac. Ry. Co., 57 Mont. 93 , 186 Pac. 702 .) The society was insisting at all times that it was right *553 fully in possession, and was claiming the crops in controversy, and it is only upon the theory that it was a tenant that such claims could be made. On the other hand, Greenwood testified to numerous conversations which he had with Stahl during the early spring of 1920, all relating to the obligations imposed upon the society, and in that connection, among other things, he testified that he recognized the right of the society to a lease according to the terms set forth in the contract of October 7, 1919, until he saw that it was not going to farm the land as it had agreed to do, and that in March or April, 1920, he told Stahl that he would prefer to have the pasture lands to run his own stock upon, if Stahl would let him have them, and, if the society wanted to be released from its obligation to pay rent for such lands, it must complete the other term of the lease, viz., cultivate the farming lands. If the relation of landlord and tenant did not then exist between them, the society owed to plaintiffs no duty'whatever to farm the lands or do any other work upon them, had no interest in the pasture lands to surrender, and owed no rental from which it could be released. (3) Assuming that the trial court found [5] the facts to -be as indicated by the undisputed evidence and the testimony introduced by the society, the society was at least a tenant at will. (Power Mercantile Co. v. Moore Mer. Co., 55 Mont. 401 , 177 Pac. 406 .) It is not made certain by the contract of October 7, 1919, that the society was called upon to do any work, other than the work it had done and the work it was undertaking to do when restrained by the injunction.

Again, it is contended that the entire contract of October 7, 1919, was merged in the deed of January 16, 1920, and that any right which the society had to lease was conveyed or surrendered. The deed referred to was not introduced in evidence, is not before us, and is not subject to construction upon this appeal; but that it was never the intention of the parties that the deed should have such effect is demonstrated by the evidence just recited above, and by other evidence of a similar character. As late as April 13, 1920, Greenwood wrote to Mr. Johnson of Lewistown, who then had some interest in the *554 property with plaintiffs, and, referring to a conversation which he had with Stahl on the day previously, among other things, said: “I will draw up a lease contract that will cover all the points that a lease should contain and as agreed upon at the time the purchase of the land was made, and I am sure the Mennonites will not sign it, as they will not bind themselves to do anything,” etc.

Finally, -it is contended that it cannot be determined from [6-7] the evidence whether all of the fall wheat in controversy, 550 acres, was produced upon the lands to be included in the lease, and therefore the court erred in dissolving the injunction, and should have modified it and continued it in force to protect plaintiffs in the possession of the lands not to be included in the lease, and the crops produced upon them.

Upon the hearing, plaintiffs assumed the burden of proof, and, in addition to the proof necessary to establish- the fact that they were the owners of the land in fee, offered evidence to prove, and undertook to prove, that the sociéty was not [8] entitled to possession under the contract of October 7, 1919. In other words, they assumed the burden of proving that they were entitled to the injunction which had been issued at their instance and request. Having voluntarily adopted that theory in the trial court, they will not be heard on appeal to urge a different one, and could not do so successfully. On motion to dissolve an injunction before trial upon- the merits, the question before the court is whether upon all the facts disclosed at the hearing, the court should have granted the injunction in the first instance. (Lawrence v. Lawrence (Sup.), 172 N. Y. Supp. 146 .) If the evidence leaves it uncertain whether any portion of the wheat in controversy was produced upon lands which were -not to be included in the lease, the plaintiffs are responsible for the uncertainty under the theory upon which the hearing proceeded.

Upon this appeal we have assumed, without deciding, that the complaint states a cause of action in ejectment, and that the Greenwood, affidavit is sufficient to warrant the trial court acting upon the ex parte application, for an injunction. It was [9] not the province of the district court, and it is not the *555 province of this court, to determine finally any matter which may arise upon a trial of the merits. These observations are to be understood only as reflecting our views upon the question of plain-. tiffs’ right to an injunction as disclosed by the evidence presented at the hearing.

The order dissolving the injunction is affirmed, and the order of this court, continuing the injunction in force until the hearing and determination of this appeal, is vacated.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Hurly, Matthews and Cooper concur.