Betz v. City of Sioux City , 239 Iowa 95 ( 1948 )

I have no quarrel with the majority opinion as to most of the general proposition made. It is not my understanding that the opinion holds that the irregularities in procedure amount to reversible error, such as the violation by the court of Rule 118, making a general ruling instead of specifying the grounds upon which the ruling is based. Hull v. Bishop-Stoddard Cafeteria,238 Iowa 650, 26 N.W.2d 429; Humphrey v. City of Des Moines,236 Iowa 800, 20 N.W.2d 25; State v. Otterholt, 234 Iowa 1286, 15 N.W.2d 529, in all of which this irregularity was discussed, have held that the failure of the court under Rule 118 had not been so prejudicial as to require a reversal, and we expressly say so in the Hull case, supra. It is not contended that defendant's motion should be sustained in its entirety.

It may also be agreed that the claim was filed in 1941, prior to the dispossession of the plaintiff. No claim is here made that the amended and substituted petition was an abandonment of the claim made in the original petition for compensation for improvements made. But I think that some of the allegations of defendant's motion were properly sustained. These are: (1) That the plaintiff's petition shows on the face thereof that said plaintiff is not an occupying claimant under provisions of chapter 440 of the 1939 Code of Iowa (560, Code of 1946); (2) that it is shown by defendant's amended and substituted petition that plaintiff fails to allege that he is in possession of the premises described in the petition as required by said chapter 440; and (3) that plaintiff's amended and substituted petition shows affirmatively that the plaintiff is not in possession of the real estate described therein, and being out of possession and having surrendered possession thereof to the defendant herein cannot maintain an action as occupying claimant under chapter 440.

Throughout the consideration of the case it must be remembered that the question involved is not one of title, but of possession. The statute under which this action is brought is set out in the majority opinion, but may be repeated here. Section560.1, Code of 1946, reads:

"Where an occupant of real estate has color of title thereto and has in good faith made valuable improvements thereon, and is thereafter adjudged not to be the owner, no execution shall issue to put the owner of the land in possession of the same, after the filing of a petition as hereinafter provided, until the provisions of this chapter have been complied with."

Since a person in occupancy of premises cannot be removed therefrom by process of law until the provisions for compensation have been complied with, it is contended that if he is not in possession or does not retain possession he is not an occupying claimant, and the rulings in this state have been to that effect. It is further contended that the ground of the motion alleging that the plaintiff, not being in actual possession, cannot be regarded as an occupying claimant, and is so shown by plaintiff's petition.

Plaintiff states that the defendant has evicted him under claim of superior title, and that the defendant city is now in exclusive possession of all of the made land claimed by this claimant. The petition thus affirmatively shows that he is not in possession; that he is no longer an occupying claimant of the land. Of course under the provisions of the chapter no execution could issue. He could not be lawfully evicted, and thus his right to remain upon the land could not be impaired by any process of law until recompense is made, and the petition showing claim for damages does not allege that his claim has not been satisfied. Therefore, he is a claimant whose occupancy could not be legally disturbed, and who is shown affirmatively not to be in possession. Being so shown at the time of the hearing the court should and did properly sustain the motion.

The majority opinion alleges that a claim of eviction was made in the petition, and that this was sufficient to support his right. The opinion is based largely upon this pleading of eviction. Of course eviction does not necessarily mean a forcible dispossession, nor on the other hand can eviction mean a voluntary surrender, but to avoid being voluntary there must be some form of compulsion.

The word "evict" means:

"1. Law. (a) to recover (property) by legal process or by virtue of a superior title (b) to put out (a person) by legal process, or by virtue of a paramount right or claim of such right; to eject; oust." Webster's New International Dictionary.

Under the statute there could be no force, no legal process or anything which amounted to compulsion. It therefore appears that plaintiff's loss of possession under claim of superior title must have been through his own act. In other words, voluntary, and at the time of the hearing he was not in occupancy.

The ruling upon the motion depends upon the question: Was the plaintiff, who at the time of filing the substituted petition was not in occupancy or possession of the land, entitled to any right under the occupying claimant's law? I am satisfied the right to recover compensation may be waived, abandoned, or forfeited by any act on the part of the plaintiff which was inconsistent with such right or shows an intention not to assert it, as by failure to comply with the statutory requirements in order to secure an allowance; by voluntarily abandoning the improvements; by electing to remove them; or by a failure to set up his claim at the proper time, although as to this rule there is authority to the contrary. 31 C.J., Improvements, section 22, and cases cited thereunder; 42 C.J.S., Improvements, section 9.

"The remedy provided an occupying claimant, by some statutes, can be asserted only by a claimant in possession. If an occupant surrenders possession without claiming compensation, his right to recover for improvements, under such a statute, is gone." 27 Am. Jur., Improvements, section 8.

See, also, Bigelow v. Indemnity Ins. Co., 206 Iowa 884, 221 N.W. 661, citing Lindt v. Uihlein, 116 Iowa 48, 56, 89 N.W. 214, 217. In the latter case the defendant failed to file his petition until too late. It is stated:

"That act provides a special remedy, and he who seeks to avail himself of it must bring himself within the statute, and pursue the course there indicated. [Citing cases.] This proceeding does not contemplate the recovery of any personal judgment against the landowner, but is in the nature of an assertion of a lien upon the property by the party in possession, accompanied by the right to retain such possession until the lien is satisfied. Dugan v. Von Puhl, 8 Iowa 265. It is so far analogous to the lien which a mechanic has upon personal property on which he has bestowed labor and skill, that he need not surrender possession until his claim has been discharged; but possession once lost, except by force or fraud, the lien is lost. To effectuate that lien, Code, section 2964, provides that no execution shall issue to put the claimant out of possession after he has filed a petition for compensation for his improvements."

Later, on page 57 of 116 Iowa, page 217 of 89 N.W., after stating that no request was made of the court for stay of execution, the opinion continues:

"* * * nor does it appear that, after the execution was in fact issued, any application was made to the court to recall the writ or to prevent its enforcement. It was, in fact, fully executed, and no attempt was made to preserve defendant's rights as occupying claimants until the appeal from the decree had run its course through this court. That this loss or surrender of possession works the loss of their right to be regarded as occupying claimants must be accepted as the settled law of this state." Citing Webster v. Stewart, 6 Iowa 401; Claussen and Kuehl v. Rayburn, 14 Iowa 136.

See, also, Jefferson v. Rust, 155 Iowa 133, 137, 135 N.W. 613; McCormick McCormick v. Dumbarton Realty Co., 156 Iowa 692, 695, 137 N.W. 943.

It is by no means clear that even the unlawful eviction of a plaintiff, if there had been such, would have been sufficient to authorize him to recover while not in possession. He had his remedy for such unlawful or forcible dispossession. Some of our holdings so indicate. In such case eviction would not be an excuse for a failure to remain in possession.

The majority opinion challenges the authority of the cases hereinbefore cited. To sustain such majority opinion would be, in effect, to overrule our holdings. The original case, Webster v. Stewart, supra, has been cited numerous times in our decisions and followed. The gist of that opinion, according to the majority opinion, was that the defendant had "unlawfully, wrongfully, and without the knowledge or consent of plaintiff, entered upon said land, and took possession of the same and the improvements" and retained the property without compensation to plaintiff for the reasonable worth of the improvements. In that case a demurrer to the petition was sustained. This court affirmed, and held that dispossession of the occupant, even though effected in the way stated, defeated his right of action under the statute because he was no longer an occupant of the property. So long as this decision has not been disavowed by this court it remains a part of the law relating to occupying claimants. I think it is still the law.

The petition alleges no claim of payment of taxes, makes no allegation of good faith other than by reference to the statute, and makes no color of claim to title except by occupancy. As heretofore stated, his claim is mainly based upon his interpretation of the word evict. I feel satisfied that the motion was rightly sustained and should be affirmed.

MANTZ and SMITH, JJ., join in this dissent.