
    J. A. PRITCHARD et al. v. D. E. WILLIAMS.
    (Filed 9 March, 1921.)
    1. Betterments — Evidence—Estates.
    When the unsuccessful defendant in an action of ejectment may recover as betterments for improving farm lands in which he had a life estate only, it is competent for him to show that the land had been depleted and remained idle for a period of time, and by his expenditures in a systematic plan of unusual fertilizing, clearing the lands of trees, ditching, building of fences, etc., with a dona fide and reasonable belief that he owned the fee, he had brought the land to a high state of cultivation; and it is for the jury to determine whether the land had been substantially and permanently improved thereby, and if so, the added value. C. S., 701.
    2. Same — Questions for Jui’y — Trials.
    Where it has been judicially determined, in an action of ejectment, that the defendant is entitled to recover for betterments placed thereon, while dona fide believing that he was the owner of the fee, when he was, in fact, a tenant for life, the wishes of the remainderman as to the kind or nature of the improvements, or "whether they will be useful to him, is immaterial, the question for the jury to determine upon the evidence being the value of such improvements as were permanent and substantially increased the value of the land, not exceeding the cost.
    Appeal by both, parties from Galvert, at November Term, 1920, of CaMDEN.
    This was an action in ejectment, in which the plaintiff recovered, 175 N. 0., 319. A petition was filed for betterments, and in the same case, 176 N. C., 108, the Court held (by Brown, J., for a unanimous Court) that the petitioner (the defendant) was entitled to recover the same. Upon rehearing, 178 N. C., 444, this judgment was reaffirmed. This is an appeal from the verdict and judgment upon the issues submitted, the only points presented being exceptions to the charge on the third issue as to the value of the betterments. Both parties assigned error and appealed.
    
      
      Meehins & McMullan and D. H. Tillett for plaintiffs.
    
    
      B. G. Dozier, W. I. Halstead, Aydlett & Simpson, and Ehringhaus & Small for defendant.
    
   Plaintikf’s Appeal.

Claek, 0. J.

The court charged that the term “permanent improvements” includes “all improvements of a permanent nature, and which substantially enhanced the value of the property in controversy.” The court charged further (the property being a farm) that “putting up dwelling-house or tenant houses, barns and stables, and other out-buildings, and any substantial improvements which might be made to those buildings, the necessary ditching and necessary or proper fencing, the digging of a well or planting of orchards, and cutting the timber in the course of clearing for cultivation, the grubbing of stumps, bushes and reed patches necessary to clear and break the land for planting and cultivation were permanent improvements on such property within the meaning of the statute,” adding, however, “that it was for the jury to determine whether or not such improvements, if the jury should find that any were made, enchanced the value of the property, and if so how much, and while the jury should consider substantial additions or improvements to the buildings if made, they should not consider repairs to such buildings which should be made by the owner in the ordinary use of such property.” He further charged that ditching (embraced in the plaintiff’s first exception), wire fencing (second exception), lightning rods (third exception), dwelling-house, tenant houses, barns and stables, the digging of a well, and the planting of orchards, and the like were permanent improvements only if they substantially enhanced the value of the property. In these instructions we find no error.

The plaintiff’s fourth and fifth exceptions were to the refusal of prayers to instruct the jury, which were based upon the idea that since under the terms of the trust established in the main cause, 175 N. C., 319, the plaintiff was decreed to be the owner of the life estate, he occupied the position of a life tenant with respect to the improvements made by him. But he was not an ordinary life tenant within the meaning of the principle that life tenants cannot recover for betterments which were placed thereon with the knowledge of that fact. The defendant made the improvements, as the jury find, under a bona fide belief that he was the owner in fee simple, and the court decided that the plaintiff was entitled to have the issue thereon submitted, 176 N. C., 108, by a unanimous Court, and this was reaffirmed on rehearing, 178 N. C., 444. The plaintiff’s prayers were therefore properly refused.

Exceptions 6 and 7 to the refusal of prayers cannot be sustained. The defendant’s right to recover for betterments does not depend upon the wisb of plaintiff for them or the sufficiency of the buildings already upon the land, R. R. v. McCaskill, 98 N. C. 526. The sole question, the defendant having placed these improvements upon the land under a bona fide belief that he owned the premises in fee simple, is whether or not the things which were put thereon as permanent improvements “substantially enhanced the value of the premises.” If so, the defendant was entitled to recover to the extent of such enhancement in value of the property caused thereby, not exceeding the cost. In the plaintiff’s appeal there is

No error.

DEFENDANT’S APPEAL

The exceptions on the defendant’s appeal present but a single question, and that is, whether the evidence therein offered tending to show a large outlay, and labor in preparing the soil to put it in condition for cultivation, and improving the fertility permanently by the use of a judicious system of tillage and high-grade fertilization over and above the ordinary fertilization of the property from year to year, should be submitted to the jury.

The defendant offered to show as follows: “That the defendant had also adopted and used a system of tillage with an idea of improving permanently the character of the soil and increasing its fertility, and that he had judiciously applied this system to the cultivation of this land; that he had burned and qilaced upon the land 8,000 bushels of oyster 'shells, burned into lime; that he had placed twenty loads of manure upon the lands the first year, besides that which came from the place; that he had placed upon these reclaimed acres 200 loads of manure a year in addition to the ordinary accumulation on the farm; that he had purchased and placed on it in addition to this an entire barge load of manure; that he had also placed upon the land 1,000 bushels of hard-wood ashes each year, for nine years, same having been taken from his mill, which was located in the neighborhood; that he had sowed the land with peas and clover and plowed them in for the purpose of increasing its fertility; that he had in his system of tillage adopted a judicious system in the rotation of crops and deep plowing peculiarly adapted to this soil, for the purpose of increasing its fertility; that in addition to the 8,000 bushels of oyster shells burned into lime, the defendant had placed on the land two carloads of agricultural lime of about 100 tons; that this was all in addition to the fertilizers used each year for the tillage of the crops, and for which no claim is made; that in following this line of effort to improve the soil the defendant had made a cash outlay in excess of $4,230.18, and that in his opinion such efforts had enhanced the value of the property to this amount.”

Whether the above were applied, and whether they substantially enhanced the value of the farm, was fit for the jury to consider, and we think it was error to exclude the testimony offered.

This evidence tends to sbow an unusual and successful effort by wbicb a run-down farm of about 143 acres, wbicb bad lain idle for almost a generation, bad been brought into a bigb state of cultivation, and made, as tbe defendant contends upon tbe evidence', to “blossom like a rose.” Tbe mere cultivation of tbe soil in tbe ordinary use of tbe land and fertilization thereof for tbe purpose of raising crops in tbe ordinary course of tillage certainly would not constitute betterments. Only those things. wbicb substantially enhance tbe value of tbe premises permanently should be estimated by tbe jury and allowed to tbe defendant as compensation.

Tbe statute does not permit a recovery .except for improvements that are permanent and valuable. Tbe word “permanent” is defined in the Century Dictionary as “lasting, or intended to last indefinitely,” “fixed or enduring,” “abiding,” and tbe like, and it was held in Simpson v. Robinson, 37 Ark., 132, that an improvement does not mean a general enhancement in value from tbe occupant’s operations.

It is elemental justice, as well as public policy, when a man occupies premises, “having reason to believe,” C. S., 701, that be is owner thereof in fee simple, that to whatever extent be has increased tbe value of tbe property by permanent improvements thereon be should receive compea-sation from tbe party who recovers tbe premises.

Tbe cultivation of tbe soil in a good and proper manner, and tbe keeping of tbe buildings in repair and tbe land in good condition does not entitle tbe defendant to recover compensation, but permanent improvements by clearing tbe land, ditching, fencing, and likewise bigb fertilization of permanent effect (over and above tbe ordinary fertilization for tbe purpose of making tbe crops), -causing enhancement in tbe value.of tbe farm — all these things are properly for tbe consideration of tbe jury, who should find what is a fair allowance for tbe permanent enhancement in value of tbe property thereby at tbe time of tbe recovery of tbe premises by tbe plaintiff.

But it is a matter of fact for tbe jury, rather than one of law, to estimate upon tbe evidence whether any of these things have added permanent enhanced value to. tbe realty. If a building is placed -upon tbe premises it will gradually decay; if ditches, fencing, or other betterments are made they will gradually deteriorate, if not kept up. “Permanent” improvements mean such betterments as will add to tbe intrinsic value of tbe property at tbe time it was recovered by tbe plaintiff whether there has been, in-this case, unusually bigb fertilization of tbe land, or tbe addition to tbe stiil of vegetable or mineral matter whereby tbe property has been permanentily enhanced in value, when there is evidence offered to that effect; is for tbe jury to determine in estimating tbe benefit wbicb tbe plaintiff derived therefrom. In tbe course of time, by negligence, the buildings may deteriorate, and the enhanced production of the land may grow less, but the jury is to estimate what is the permanent added value to the premises at the time the plaintiff recovered the property. The difficulty is not in the principles of law applicable but as to matters of fact arising upon the evidence and which were for the jury to weigh and determine and which can never be exactly the same- in any two cases. If unsuitable buildings are put upon the premises, no matter what the cost, the jury can find that it was no enhancement to the property thereby, so if the ditching and fencing were unnecessary or injudiciously made, the jury would consider the same. But it is not essential that they be useful to the plaintiff, R. R. v. McCaskill, 98 N. C., 526.

The sole matter for consideration is embraced in one proposition, and that is, “IIow .much was the value of the property permanently enhanced, estimated as of the time of the recovery of the same, by the bet-terments put thereon by the labor and expenditure of the bona fide holder of the same ?”

The matter is fully discussed and clearly set out in Gibson v. Fields (79 Kansas, 38), 17 Anno. Cas., 406, in the elaborate notes thereto appended.

Certain acts which amidst certain surroundings and conditions might enhance the property permanently, in other surroundings and conditions would add .nothing to its permanent value. These are ordinarily matters for the jury, and no general rule can be laid down more definite than that above stated. In the defendant’s appeal there was

Error.

Stacy, J\, concurring.

Walker, I.,

dissenting. In 1907 defendant Williams received a deed for the lands in controversy from Mrs. Mary and Miss Mary Elizabeth Hughes, purporting to convey a fee simple. Defendant thereupon entered into possession of the lands, which he still occupies. In the main action this Court held that the plaintiff was entitled to recover the lands under the parol trust established. Under this trust it is admitted that the defendant took from the Hugheses a life estate, and the plaintiffs, in consequence, were not entitled to offset rents for the period running from 1907 to 15 May, 1915, inclusive, as against defendant’s claim for better-ments. At the time of the execution of the deed from the Hugheses to the defendant, Miss Mary Elizabeth Hughes was forty-four years of age, having an expectancy of twenty-five years. Upon rendition of the judgment in the main action, defendant filed this petition, claiming compen■sation for alleged permanent improvements made from 1907 to 1918, inclusive, defendant being still in the possession of the land by the order of the court. At the trial it was admitted that the enhanced value of the land should be estimated as of 15 May, 1915, the date of Miss Mary Elizabeth Hughes’ death. ■ v

Defendant upon the trial offered to show the expense incurred in breaking soil preparatory to putting the land in cultivation, and that it was necessary to put it in cultivation. This testimony was excluded, and defendant excepted. In this connection, it is to be observed that at the time the defendant took possession of this land it was all open land, which had theretofore been in cultivation and which had only been permitted to “lie out” for a number of years in accordance with the well known practice of farmers, in order to restore fertility. In no view of the evidence was it wild land or prairie land, which had never before been subject to cultivation.

The court permitted the defendant to offer evidence to show the cost of clearing this land; that is.to say, the cost of cutting the trees upon the hedgerows, clearing hedges, the grubbing of stumps, and the taking out of reed patches, and further to show the enhanced value resulting from such improvements to the land; and that the only testimony rejected was that to show the alleged cost of breaking the land; that is to say, when regarded in connection with the evidence received, the doing of necessary plowing to enable the land to be planted and cultivated.

The law which is, perhaps, applicable to wild or prairie lands, has no relevancy here. These lands had been in cultivation, but their fertility, perhaps, had at one time been exhausted, and they had been permitted to “lie out,” or remain fallow or uncultivated for one or more years, until they could by proper tillage and fertilization be made to yield a remunerative crop.

The doctrine of permanent improvements in cases of this kind is based upon the theory that one acting under a bona fide belief that he has the true title has done something the main purpose of which is to render the land more valuable; and does not include those things which, while they may have an incidental tendency to increase the value of the freehold, are yet done with the main purpose of increasing the current years revenue by producing a larger crop.

The defendant in this case was a life tenant, and he enriched the land, primarily at least, for his own benefit, that is, for the better enjoyment of the land by himself, and, even if there was a temporary enhancement of its value, it was purely incidental, and was not permanent in any correct sense of that word, as will presently be seen.

In any event, defendant, by the restriction of the statute, could not recover more than the amount actually expended by him in making the improvements, and plaintiffs asked for an instruction to this effect, which was refused. Consol. Statutes of 1919, sec. 701.

Tbe second exception is based upon bis Honor’s exclusion of testimony tending to support tbe item 'in defendant’s bill of particulars, entitled, “Improvement to soil, 1907 to 1918.” In support of tbis claim defendant offered to sbow that by a system of rotating crops, and of plowing, and by tbe use upon tbis land of large quantities of stable manure, asbes, and lime, be bad permanently improved it. Tbe testimony was properly excluded, as tbe law does not consider fertilization of tbe soil as constituting a permanent improvement. Crummey v. Bentley, 114 Ga., 746; Effinger v. Kenney, 92 Va., 245; Wright v. Johnson, 108 Va., 855. It may be admitted, for sake of argument, that where lands are judiciously cultivated and properly fertilized by a tenant for life or years, tbey may be more valuable at tbe end of tbe tenancy than if tbey bad been subjected to a haphazard or injurious use, but tbe improvement is not of that lasting character as is contemplated by tbe betterment statute. It is further true, however, that it is tbe duty which such a tenant owes either to bis landlord, or to tbe reversioner, to cultivate tbe lands judiciously, and that tbe main purpose of such method of cultivation, and of proper fertilization also, is to increase tbe present tenant’s revenues by tbe greater crop yield during bis term. It may be, and perhaps is, quite true that the effect of manure and lime ujion land is more enduring than that of tbe ordinary commercial fertilizer — tbe latter being used mainly because tbe former is not readily obtainable; but tbe effect of all these is nevertheless temporary, lasting by common knowledge not more than two or three years, tbe ordinary commercial fertilizer being supposed to exhaust itself in about one year’s time. Tbe use of manure and lime is, in a word, fertilization — a better class of fertilization it may be, but nevertheless only fertilization. It is to be remembered, also, in tbis connection, that at tbe time tbis land was fertilized by tbe defendant, be owned a life estate, tbe expectancy whereof was twenty-five years, and which in fact endured for nine years, during all of which tbe defendant occupied tbe land rent free, and it would be strange justice if tbe defendant, who has so occupied the land during tbis period, could recover for fertilization and judicious tillage during tbe period of bis own life tenancy, when be was bold-ing tbe lands for bis own exclusive benefit.

Another reason why tbe testimony was properly excluded is that tbe defendant offered to show such fertilization and such tillage from 1907 to 1918, inclusive, together with tbe added value thereof to tbe land. Even assuming that these acts of defendant constituted permanent improvements, tbe defendant still could not recover for such improvements after the institution of this action in November, 1916, when be acquired full knowledge of the facts. It was the duty of tbe defendant, therefore, in offering tbis testimony, to restrict tbe same to tbe improvements claimed, and tbe enhanced value of tbe land therefrom to tbe period for which defendant was entitled to recover for snob enhancement. And the defendant, having failed to do so, and having included in his offered testimony as well the claim for improvements made after suit brought as those made before suit was brought, the testimony was properly rejected.

Reverting to the principal question, as to whether defendant could be allowed anything for cultivation, fertilization, tillage, etc., we find that the authorities are to the’ effect that he cannot have such remuneration, because these improvements are not of a permanent character. The Court said, in Cumming v. Bentley, supra: “Another item consisted of a claim for improvement to the land by reason of fertilization. The court held that the defendants were not entitled to any allowance upon these claims; and we are of the opinion that, even giving to the act in question its widest possible scope and operation, the views entertained by the trial judge were undoubtedly sound.” See, also, Effinger v. Kenney, supra, and Wright v. Johnson, supra.

AlleN, J., concurring in the dissent.  