I dissent. Assuming that appellants had a lease of the land upon which the hay was cut and harvested, it expired on April 1, 1942. The hay was not cut until July 1942, while respondent, who had bought the land in the May previous, was in the hospital at Glendive. Appellant W.G. Hamilton testified to the effect that the cancelled check for $10 payable to Anna M. Clellan dated October 27, 1941, upon which was written, "Rent on N.W. 1/4 Sec. 26-10-54 from April 1st, 1941, to April 1st 1942," constituted a lease to the appellants, makers of the check, from Anna M. Clellan, payee of the check and owner of the premises at the date thereof. But appellant says the lease was renewed by virtue of the provisions of subdivision 2 of section 9889, Revised Codes of Montana 1935, and their alleged holding over after the expiration of the lease and the alleged failure of the owner of the premises to demand possession or give appellants notice to quit within 60 days after the expiration of the term of the lease. The pertinent provision of the statute upon which appellant relies reads as follows: "In all cases of tenancy upon agricultural lands, where the tenant has held over and retained possession for more than sixty days after the expiration of his term without any demand of possession or notice to quit by the landlord, or the successor in estate of his landlord, *Page 256 if any there be, he shall be deemed to be holding by permission of the landlord, or the successor in estate of his landlord, and shall be entitled to hold under the terms of the lease for another full year * * *."
This statute was adopted by Montana from the California Code of Civil Procedure, by the enactment of the Montana Codes in 1895.
The California Code section in the identical language was section 1161, California Code of Civil Procedure. It has been construed and applied by the Supreme Court of that state in several cases. That court holds that this statute "creates a presumption of law merely, and it is always permissible for either of the parties to a lease to show circumstances tending to rebut the legal implication arising thereunder from continuous occupation of the premises after the expiration of the original term." Ambrose v. Hyde, 145 Cal. 555, 79 P. 64; Cowell v. Snyder, 171 Cal. 291, 152 P. 920; Swithenbank v. Wood, 99 Cal.App. 341,278 P. 496, 279 P. 462.
Here, Mrs. Clellan, the landlord, wrote to appellants under date of May 20, 1942, which is less than sixty days from the expiration of the "lease," and told them, as set forth in the letter in the court's opinion here that, "In the future if you wish to rent or buy the place you have to see Connie Clellan at Mildred as he will act as my agent." Appellants admit they received this letter (it was registered) but put forth the technical objection that it did not constitute a demand for possession or notice to quit.
It appears to be a sufficient notice to any person of ordinary understanding that the lease was not renewed; that if the appellants wished to rent the place it would be necessary for them to see the landlord's agent, Connie Clellan. It follows as of course that if the lease was not renewed the landlord was entitled to possession of the premises. In truth she was then in possession, as legal possession is defined. The land was unfenced grazing land but was within a large tract of several sections of land of appellants. Appellants' cattle grazed on *Page 257 their lands and perhaps in so doing nibbled herbage from the land of Mrs. Clellan. This not quite constitutes possession by appellants of land which by reason of the ownership of Mrs. Clellan, was in contemplation of law in her possession. Constructive possession truly, but sufficient nevertheless, against the delayed asserted claim of appellants, which to come within the statute must be actual and real.
But as stated, the statute only creates a presumption. Had appellants not been notified, clearly and explicitly by the letter of May 20, 1942, that the lease (if the loose arrangement of paying $10 when convenient to appellants as a year's rent for the 160 acres of land may be called a lease), would not be renewed for another year, and had the 60 days following the end of appellants' term expired without word or act from the landlord indicating otherwise, the presumption of renewal would come into being. By reason of the notice to the tenants within the 60-day period after the "lease" expired, the presumption did not arise, and the appellants were trespassers. I see no evidence of good faith on the part of appellants in entering upon the land and cutting the grass after they had received in May the notice that "all deals was off."
The verdict of the jury and judgment thereon entered appear to me to be in accordance with the facts and the law. I see no error at the trial and think the judgment of the district court should be affirmed.