Bastian v. King

• Decision Date: 23 March 1983
• Docket Number: No. 17839,17839
• Citation: 661 P.2d 953
• Parties: George A. BASTIAN and Steven Burton, Plaintiffs and Respondents, v. Jack KING, Defendant and Appellant.
• Court: Utah Supreme Court

Page 953

661 P.2d 953

George A. BASTIAN and Steven Burton, Plaintiffs and Respondents, v. Jack KING, Defendant and Appellant.

No. 17839.

Supreme Court of Utah.

March 23, 1983.

Dwight L. King, Salt Lake City, for defendant and appellant.

E.J. Skeen, Salt Lake City, Stanley R. Smith, American Fork, for plaintiffs and respondents.

STEWART, Justice:

This is an appeal from a trespass action in which the trial court assessed damages against the defendant for injury to plaintiffs' crops and irrigation pipe caused by the trespass of defendant's cattle on plaintiffs' farm land. We affirm as to liability but remand for further findings as to the amount of damages.

In 1979 Bastian leased to Burton 280 acres of farm land in Garfield County, Utah. The land had been uncultivated since 1962. A fence enclosed the land, although it was in a state of disrepair at the time the lease was executed. During the spring and summer of 1979, Burton planted 197 acres of "milo," an experimental crop, which was irrigated by plastic pipe. The cultivated area where the crop was grown was surrounded by desert land and was a natural attraction for livestock. However, neither Bastian nor King made any effort to repair the existing fences. The crop was scheduled for harvest in late November of 1979.

On approximately November 1, 1979, the defendant brought his cattle to feed in a vicinity not far from the Bastian farm. King had previously discussed with Burton the possibility that King's cattle might trespass on the farm and took the position that it was either Bastian's or Burton's responsibility to fence the cattle out. After King turned the cattle out to graze, they drifted onto the farm and fed on the milo through the entire winter, essentially destroying the crop.

This lawsuit ensued. The plaintiffs alleged that the defendant was liable under the Utah livestock fencing statute, U.C.A., 1953, § 4-25-8, for damage to the crop and the plastic pipe. The trial court ruled in favor of plaintiffs and assessed damages in the amount of $2,966 for the crop and $500 for the pipe. On this appeal, defendant contends that the Utah fencing statute is unconstitutional and that the trial court should not have awarded damages because the evidence of damages was too speculative.

The Utah fencing statutes place liability for trespassing livestock on the owners of livestock unless the county enacts a fence law. Section 4-25-8 states:

The owner of any neat cattle, horse, ass, mule, sheep, goat, or swine that trespasses upon the premises of another person, except in cases where the premises are not inclosed by a lawful fence in a county which has adopted a fence ordinance, is liable in a civil action to the owner or occupant of such premises for any damage inflicted by the trespass.

Garfield County has not enacted a fence ordinance, as authorized by § 4-25-7, ¹ thus placing the burden on livestock owners to prevent their livestock from trespassing.

Utah's fencing laws, § 4-25-7 and § 4-25-8, vary only slightly from a line of statutes beginning with Sections 1 and 4 of Chapter 55, Laws of the Territory of Utah, 1890, ² and continuing through to the present. ³ In two previous cases we have upheld the constitutionality of these fencing statutes against different challenges than are made here. In Peterson v. Petterson, 42 Utah 270, 130 P. 241 (1913), we held that the laws were not an unconstitutional delegation of power to counties, did not operate nonuniformly in violation of Art. 1, § 24, and were not an unconstitutional special law under Art. VI, § 26 of the Utah Constitution. In Nowers v. Oakden, 110 Utah 25, 169 P.2d 108 (1946), we held that U.C.A., 1943, §§ 3-5-77 through 3-5-79, the fencing statutes then in effect, were not unconstitutionally vague.

Defendant's constitutional arguments are stated summarily. His contention seems to be that § 4-25-8 violates the due process provisions of the Federal and Utah constitutions, by imposing liability on him for not fencing, because it is contrary to the rule followed in some other states with regard to fencing and places an unreasonable burden on the owners of livestock by requiring them to fence the land where their cattle graze to prevent them from trespassing on land where crops have been planted. Defendant cites several cases from other states that require livestock to be fenced out and contends that that is the law in most western states. See Lazarus v. Phelps, 152 U.S. 81, 14 S.Ct. 477, 38 L.Ed. 363 (1894) (applying Texas statute requiring farmers to fence out cattle); Maguire v. Yanke, 99 Idaho 829, 831, 590 P.2d 85, 88 n. 1 and accompanying text (1978) (citing statutes from six other western states). See also Scott, "The Range Cattle Industry: Its Effect on Western Land Law," 28 Mont.L.Rev. 155 (1967).

Utah has both open range land and large areas of crop land. Even though some other states have reversed the common law rule and require livestock to be fenced out of crop land, it is clearly reasonable for the Legislature to allocate liability as it has by allowing the counties to enact fencing ordinances and, in the absence of such an ordinance, by providing that the owners of trespassing livestock should be liable. Defendant's argument that the plaintiffs should have the duty to fence livestock out should be made to the county under § 4-25-7 or, in lieu of that, to the Legislature. "It is not the function of this Court to evaluate the wisdom or practical necessity of legislative enactments." Redwood Gym v. Salt Lake County Commission, Utah, 624 P.2d 1138, 1143 (1981). It is the power and responsibility of the Legislature to enact laws to promote the public health, safety, morals and general welfare of society, Peck v. Dunn, Utah, 574 P.2d 367, 368 (1978), and this Court will not substitute our judgment for that of the Legislature with respect to what best serves the public interest. The adjustment and accommodation of conflicting interests, such as are involved in this case, are for the Legislature to resolve, irrespective of the rules applied by other states.

The defendant also contends that the evidence of damage was so speculative as to be without a rational basis in the evidence. Although an award of damages based only on speculation cannot be upheld, it is generally recognized that some degree of uncertainty in the evidence of damages will not suffice to relieve a defendant from recompensing a wronged plaintiff. As long as there is some rational basis for a damage award, it is the wrongdoer who must assume the risk of some uncertainty. Winsness v. M.J. Conoco Distributors, Utah, 593 P.2d 1303 (1979). Where there is evidence of the fact of damage, a defendant may not escape liability because the amount of damage cannot be proved with precision. Winsness, supra; Gould v. Mountain States Telephone & Telegraph Co., 6 Utah 2d 187, 309 P.2d 802 (1957). See also 5 Corbin on Contracts, § 1022.

In this case, however, we have no way of knowing from the findings of fact on what basis the crop damages were computed....