Lowary v. Lowary

South Dakota Supreme Court

Lowary v. Lowary

177 N.W. 1011, 43 S.D. 87, 1920 S.D. LEXIS 62

CourtSouth Dakota Supreme Court

DecidedMay 24, 1920

DocketFile No. 4648

StatusPublished

Cited by2 cases

This text of 177 N.W. 1011 (Lowary v. Lowary) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lowary v. Lowary, 177 N.W. 1011, 43 S.D. 87, 1920 S.D. LEXIS 62 (S.D. 1920).

Pincite

Opinion

GATES, J.

Action for conversion of grain. Judgment for plaintiff. New trial denied. Defendant appeals.

The evidence on behalf of respondent tended to show that [89]*89as tenant he was entitled to one- half of the grain grown upon a certain quarter section of land; that respondent came to the land to cut the grain, but that appellant, respondent’s brother, prevented him from so doing, and threatened to kill respondent if he persisted; that appellant harvested and marketed the grain; that he received for such one-half interest its market value, the sum of $2,361.15. The .trial court instructed the jury that if it found for respondent, the amount of the verdict should be the above-named sum, no more, no less.

[1, 2] Appellant’s chief argument concerns the correctness of this instruction. He claims that the measure of respondent’s damage was the value of the standing grain, and that he should be permitted to deduct his expense of harvesting, threshing, and hauling to market. Such is' the general rule under section 1987, Rev.-Code 1919, where the wrongdoer acts through inadvertence, mistake, or honest belief in his legal rights; but, where the wrongdoer acts maliciously and intentionally, the rightful owner is entitled to treat the timle when the property is finally. converted to the use of the trespasser as the time of conversion. In United States v. Homestake Min. Co. 54 C. C. A. 303, 117 Red. 481, an appeal from the federal Circuit Court of this district, the court said:

“The measure of damages for the reckless, willful, or intentional taking of ore or timber from, the land of another without right is the enhanced value of the ore or timber when it is finally converted to the use of the trespasser. But the limit of the liability for damages of one who takes ore or timber from the land of another without right through inadvertence or mistake, or in the honest belief that he is acting within' his legal rights, is the value of the ore in the mine or the value of the timber in the trees.” -

The same principle is involved in the present case. See, also, note 24 Am. Dec. 73. The other questions argued are not deemed of importance.

Judgment and orde.r appealed from are affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

GATES, J.

Action for conversion of grain. Judgment for plaintiff. New trial denied. Defendant appeals.

The evidence on behalf of respondent tended to show that [89]*89as tenant he was entitled to one- half of the grain grown upon a certain quarter section of land; that respondent came to the land to cut the grain, but that appellant, respondent’s brother, prevented him from so doing, and threatened to kill respondent if he persisted; that appellant harvested and marketed the grain; that he received for such one-half interest its market value, the sum of $2,361.15. The .trial court instructed the jury that if it found for respondent, the amount of the verdict should be the above-named sum, no more, no less.

[1, 2] Appellant’s chief argument concerns the correctness of this instruction. He claims that the measure of respondent’s damage was the value of the standing grain, and that he should be permitted to deduct his expense of harvesting, threshing, and hauling to market. Such is' the general rule under section 1987, Rev.-Code 1919, where the wrongdoer acts through inadvertence, mistake, or honest belief in his legal rights; but, where the wrongdoer acts maliciously and intentionally, the rightful owner is entitled to treat the timle when the property is finally. converted to the use of the trespasser as the time of conversion. In United States v. Homestake Min. Co. 54 C. C. A. 303, 117 Red. 481, an appeal from the federal Circuit Court of this district, the court said:

“The measure of damages for the reckless, willful, or intentional taking of ore or timber from, the land of another without right is the enhanced value of the ore or timber when it is finally converted to the use of the trespasser. But the limit of the liability for damages of one who takes ore or timber from the land of another without right through inadvertence or mistake, or in the honest belief that he is acting within' his legal rights, is the value of the ore in the mine or the value of the timber in the trees.” -

The same principle is involved in the present case. See, also, note 24 Am. Dec. 73. The other questions argued are not deemed of importance.

Judgment and orde.r appealed from are affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

177 N.W. 1011, 43 S.D. 87, 1920 S.D. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowary-v-lowary-sd-1920.

Opinion

Related

Cite This Page — Counsel Stack