Both claimants ask for a rehearing. McCarthy claims that the state, not having appealed, cannot be awarded any part of the fund. He is hardly in a position to urge that point since we find that the record precludes him from any claim to the fund. The money is the state's until one or the other claimant proves that he is entitled to it. Under the evidence, McCarthy owned only the house, which he has removed. He is not entitled to any of the fund now held in court.
Kearney contends that the case should be sent back for appraisers to be appointed to determine the actual value of the property taken. That cannot be done. The condemnation proceedings are closed, and this suit, although in form one to determine adverse claims to the land, developed by agreement into one to determine who is entitled to the fund in the custody of the court. There can be no doubt that the award was made under the mistaken view that both house and lot were real estate. Such *Page 456 being the case, the court will award the fund only to those who show themselves entitled to it.
Kearney also claims that he is entitled to the entire award on the theory that the house became his by revocation of the license to McCarthy. The difficulty with that contention is that the record is barren of evidence that McCarthy knew of the deed to Kearney upon which revocation is based. Nor does the record show that Kearney notified McCarthy of his title or effected a revocation in any way. McCarthy was entitled to a reasonable time to remove the building after the revocation of the license. Wilson v. St. P. M. M. Ry. Co. 41 Minn. 56,42 N.W. 600, 4 L.R.A. 378. He could not well have a reasonable time to remove unless he knew of the revocation, and he was entitled to notice, actual or constructive. Dame v. Dame,38 N. H. 429, 75 Am. D. 195.
It is true that Kearney's right to the fund depends on the value of the land taken and that there is no finding of value. Kearney offered no evidence of the value of the land. McCarthy testified that the value of the land was $125 to $150. The record on this appeal is not so strong as to value as on the previous appeal, where there was a finding that it was worth $375. This court held on that record that Kearney's recovery for the value of the land could not exceed $375. In the absence of a finding, we take that as the law of the case and give Kearney the benefit of it, although he may on this record be entitled to less. The state asks for a return of only $4,425. That disposes of a case already tried three times.
Rehearing denied. *Page 457