Belau v. Buss
| Decision Date | 28 October 1925 |
| Docket Number | 5361. |
| Citation | 205 N.W. 669,48 S.D. 595 |
| Parties | BELAU v. BUSS |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Faulk County; J. H. Bottum, Judge.
Action by Fred V. Belau against Hubert C. Buss. Judgment for defendant, and plaintiff appeals. Affirmed.
Sterling Clark & Grigsby, of Redfield, for appellant.
W. J Jacobs, of Faulkton, for respondent.
Plaintiff appellant here, alleged in his complaint:
That he was a farmer and stock raiser in Faulk county, and had at great labor and expense gathered together a herd of registered pure-bred Shorthorn cattle, and had in said herd a large number of pure-bred registered Shorthorn cows, and a pure-bred registered Shorthorn bull, kept for the purpose of raising pure-bred Shorthorn calves, eligible for registration, which would be of greater value than ordinary grade calves; that he had carefully segregated said pure-bred cows for the sole purpose of breeding them to his pure-bred registered bull, for the purpose of raising pure-bred Shorthorn calves therefrom.
That defendant had in his herd a Hereford or white-faced bull that he carelessly and negligently so kept his fences that the bull was not restrained, and would and did break away from control, and on three separate occasions in May, June, and July, 1920, came to plaintiff's premises and mingled with his pure-bred Shorthorn cows, breaking into plaintiff's inclosure; that as soon as discovered plaintiff returned said animal to defendant, and advised defendant of the damage that would result to plaintiff if said bull was not kept away from plaintiff's premises during the breeding season; that, notwithstanding the warning and protest, defendant again negligently in the month of May and again in the month of June permitted said white-faced bull to remain in an insecure inclosure, and he again broke out and mingled with plaintiff's pure-bred Shorthorn cows; that plaintiff again returned said animal and warned defendant of the danger, but that said animal again broke out under like circumstances and mingled with plaintiff's pure-bred cows, and plaintiff was obliged to and did take said bull and kept him in close inclosure, and sent word to defendant that he had said bull detained at his premises, and some time thereafter defendant came and took said animal away.
That said white-faced bull was so with plaintiff's cows during the breeding season that four of them became with calf by him and were afterwards delivered of white-faced calves, none of which were eligible to registry for pure breds and that one other high-grade Shorthorn cow of plaintiff's was got with calf by said bull; that plaintiff's pure-bred cows would have become with calf by his Shorthorn bull, had it not been for the trespass and presence of defendant's bull in his herd, and he would have received four full-blood Shorthorn calves eligible for registration and one high-grade Shorthorn calf, but for the trespass of defendant's bull, as aforesaid.
That pure-bred Shorthorn calves during the year 1921, when said cows were delivered of white-faced calves, could have been sold by plaintiff on the market for $75 each, but that the white-faced grade calves were not worth more than $25 each; that his high-grade Shorthorn cow would have produced a calf worth $50, whereas the white-faced calf was not worth to exceed $25, and that such prices for such pure-bred Shorthorn could have been obtained in the vicinity of plaintiff's farm during said year; that plaintiff expended time and labor in chasing defendant's bull away from his farm and keeping him from coming in contact with his pure-bred cows, and feed for keeping him, in the sum of $75, and asked judgment for the difference in value between the four pure-bred registered Shorthorn calves he would have had and the four grade calves he did receive, and between a Shorthorn calf raised from a grade cow and a Shorthorn bull and a calf of mixed Shorthorn and Hereford blood and for expense and time and labor in caring for defendant's bull, in all a total damage of $300.
To this complaint defendant interposed first, a general denial; second, a plea in mitigation of damages. At the trial on December 1, 1922, defendant asked leave to amend his answer by pleading "that this action was not instituted until the expiration of more than one year after the alleged trespass, and this court has no jurisdiction." This leave was granted over plaintiff's objection.
The court found the facts substantially as set forth in the complaint; found that by reason of the trespass of defendant's bull on plaintiff's premises several of plaintiff's registered Shorthorn cows produced white-faced calves, which were not entitled to registration, and plaintiff was damaged in the sum of $100; "found that this action was not commenced until February 4, 1922, more than 18 months after said trespass, and was not commenced within 6 months after said trespass;" and further found that plaintiff brought this action under sections 2921 to 2928, R. C. 1919, entitled "Trespass of Animals," as amended by chapter 350, Session Laws of 1919, "and for the difference in value of pure-bred registered Shorthorn calves and mixed or grade calves," and the evidence shows that the plaintiff was damaged in the sum of $100 by reason of the aforesaid trespass and facts hereinbefore found.
As conclusions of law the court found that plaintiff's right of action is precluded by the provisions of ...
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