Pritchard Petro. Co. v. Farmers Co-Op.

I concur in the foregoing opinion of Mr. Justice Gibson except for what is said therein regarding "color of title."

The court's declaration in the case of Pritchard Petroleum Co. v. Farmers Co-op. Oil Supply Co., Mont., 161 P.2d 526,531, that "the tanks were returned to said tract in good faith under color of title and in the mistaken belief that it was the legal owner of said tract" cannot be shrugged away as obiter dictum.

An examination of the questions presented in the case of Pritchard Petroleum Co. v. Farmers Co-op. Oil Supply Co., supra, reveals that the court was required to consider and pass upon the question of the title of the respondents. In the course of this consideration the court made the statement above quoted. Perhaps it was not necessary to the decision to declare that the tanks were placed on the land "under color of title." Perhaps it can be argued that it was enough to say that good faith was all that was necessary. But after argument of counsel and consideration by the court the statement was made.

"A court's decision within issue fully argued by counsel and deliberately considered by court in its opinion is not `dictum.'" Bottomly v. Ford, Mont., 157 P.2d 108; Spratt v. Helena Power Transmission Co., 37 Mont. 60, 94 P. 631.

I think that the declaration that the defendant returned the tanks to the land in good faith under "color of title" is a valid utterance by this court and is now the law of the case binding upon the trial court and this court alike.

Therefore I am of the opinion that the respondent is entitled to a set-off of the value of the improvements both under the common law rule as outlined in Justice Gibson's opinion and under the provisions of section 9491, Revised Codes.