dissenting.
I find it impossible for me to consent to, or join in, the opinion of the majority in this case, and will, very briefly, state my reasons. I think the decision is founded entirely upon a wrong basis. I do not think plaintiff can be justly denounced as an intruder, a trespasser, or an interloper. A fair statement of the evidence on the part of plaintiff would be that in the spring of 1901 he was given the use of the land to seed in millet for a rental of one-third of the crop. Later, and in the fall, he applied to the person who had been acting as the agent of the landowner for the right to sow the ground in rye. He was informed that the property was for sale; but I think a fair construction of the evidence submitted by him tends strongly to prove that he was given the right, but with the reservation that, should the land be sold, he would pay the rental, which was agreed to be one-third, to the purchaser; that he plowed and planted the field in rye, and his right to do so was never questioned. Defendant resided near-by, and evidently knew of plaintiff’s possession, which was -in no sense wrongful, and the raising of the crop by him. In the spring of 1902 defendant, with full knowledge of plaintiff’s possession and labor, purchased the land and removed into the buildings thereon. Little was said between them as to the rights of the parties, except that plaintiff informed defendant that he was to pay one-third of the crop as rental, and requested defendant to keep his cow from pasturing on' the rye. ' Doubtless acting upon the suggestion of plaintiff that the rental was to be one-*527third of the crop, defendant constructed a fence by which he took in and inclosed about one-third of the rye, and subsequently made use of the inclosed portion of the ground for his own purposes. When the crop growing on the other two-thirds of the land had matured, plaintiff procured and paid a third party to harvest the standing-rye. He accompanied his employee to the land for the purpose of starting the Avork, Avlien he Avas met by defendant, assaulted, knocked doAvn and kicked, and ordered to leave the premises, or that, in case of his failure, defendant would kill him. He Avas compelled to leave. After the rye Avas cut defendant took possession of it, shocked and stacked it, • and assumed absolute control over it. Plaintiff then replevied the rye.
The defendant, Ephraim Sohn, who had been the aggressor in committing the assault and forcing plaintiff to leaAe the premises, was not called as a Avitness, and offered no denial of any of plaintiffs testimony. He appears to have tried his cause in the form of brute force and violence, and offered no explanation of, nor excuse for, his conduct. The main issue presented by defendant Avas as to the authority of the person who had theretofore been looking after the landowner’s interest, the owner being a nonresident, and from Avhom plaintiff claimed he had received permission to crop the land, to grant the permission claimed. On cross-examination the person referred to, being interrogated upon the subject, testified as follows: “Q. And didn’t you say to Mr. Warner, ‘If you Avant to take your chances, you can go ahead and put some rye on that land?’ A. No, sir. Q. You didn’t say anything of that kind and stibstance? A. He says, ‘I am going to put it in rye anyAvay’, and I says, ‘If you do, the ground will draw one-third, no matter who oavus it.’ Q. And you gave him to understand that if he put that into crop he Avould have to pay one-third rent? A. I told him that is what he Avould have to do. Q. Whether Hall kept it or whether Hall sold it? A. That it didn’t make any diffepepcq who got it, * * * Q. Now, you say that *528what you did was for Mr. Morían? A. Yes, sir. Q. And you had his authority? A. Yes, sir.”
While it is true that this evidence cannot be considered upon the question as to whether the case should have been submitted to the jury, instead of being taken away from them by the instruction directing the verdict, yet it might, possibly, be considered for the purpose of arriving at a .conclusion as to the good faith of plaintiff in the cultivation of the land. That he did act in good faith, believing he would he protected and permitted to reap the crop unmolested, I have not the shadow of doubt, although it must he conceded that he relied upon the honesty of those with whom he dealt to a greater degree than the sequel seems to have justified.
I have examined all the evidence, and cannot find a single justification for the action of the district court, nor for the affirmance of its judgment in this. That the issues should have been submitted to the jury is, to my mind, beyond question, and that by the judgment of the district court plaintiff has been unjustly deprived of his property through agencies of force and fraud is equally clear.