Appellant has filed a lengthy petition for rehearing in which many things are called to the attention of the Court but none of them was overlooked on first consideration. In fact, few cases come to this Court that receive as much pains-taking care as this one. The issues raised and the size of the record required much more than the normal time required but it was given and every question thoroughly considered.
On consideration of the petition for rehearing, we are impressed with the fact that counsel have misconstrued the effect of our opinion. In fine, the opinion recognizes title in appellee to the land in question but it also recognizes the right of appellant to collect the value of the improvements placed on it in the manner provided by statute. In fact, because of conditions stated in the opinion, both parties have substantial rights involved and we will recognize no judgment that has the effect of destroying the right of either party.
As to mesne profits, it is true that the opinion states that they "may be augmented by reason of the permanent improvements" but there was no suggestion that the criterion to determine this would be the sum that appellant spent improving the lands. The primary basis of mesne profits is rental value. Whether or not improvements is an element to be considered depends on the facts of the case. There is no showing whatever in this record that the value of the improvements made by appellant "may" be used as a basis for computing mesne profits. Unless some showing in equity can be made, they cannot be considered.
Petition for rehearing is denied.
BUFORD, C. J., TERRELL, THOMAS and SEBRING, JJ., concur.
CHAPMAN and ADAMS, JJ., dissent.
BROWN, J., not participating. *Page 450