Weeter Lumber Co. v. Fales , 20 Idaho 255 ( 1911 )

AILSHIE, J.,

Concurring in Part and Dissenting in Part. In this case the findings and decree are almost identical with the findings and decree in the case of Robertson v. Moore, 10 Ida. 115, 77 Pac. 218, and in that case this court held that it was the duty of the trial court, under sec. 5113, Rev. Codes, to ascertain the amount of land “required for the convenient use and occupation” of the building or structure and to enter a decree for the sale of that amount of land. This court accordingly reversed the judgment in that case and remanded it, with direction to the trial court to ascertain the amount of land necessary for the convenient use of the structure and to enter a decree accordingly. The findings and decree in this ease are almost identical with the decree in Robertson v. Moore. Here the decree directs “that all and singular the premises mentioned in the said complaint of the plaintiff on file herein and hereinafter described, or so much thereof as may be sufficient to raise the amount due the Gooding Townsite Co., Ltd., and the plaintiff for the principal and interest and attorney fee, and for filing and recording said lien set forth in plaintiff’s complaint, and cost of the suit and expense of sale, and which may be sold separately without material injury to the parties interested, be sold at public auction by or under the direction of the sheriff of Lincoln county.” The premises directed to be sold therein are described as lots 19 and 20 in block 38, village of Gooding, Lincoln county, Idaho. I think the ease should be remanded, with directions to the trial court to ascertain the amount of land necessary for the convenient use of the building and enter bis decree accordingly.