Bell v. Gonzales
| Decision Date | 04 December 1905 |
| Parties | BELL v. GONZALES. |
| Court | Colorado Supreme Court |
Appeal from District Court, Las Animas County; Jesse G. Northcutt Judge.
Action by Lorenzo D. Bell against Jesus Gonzales. From a judgment of dismissal, plaintiff appeals. Reversed.
Morgan & Smith, for appellant.
Action for damages for wanton trespass by defendant upon uninclosed lands of plaintiff. Defendant's demurrer to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, was sustained and, the plaintiff electing to stand by his complaint, the court dismissed the action. From this judgment of dismissal the plaintiff appeals.
There is no appearance in this court by the appellee. Hence it is only by inference and from statements made by appellant in his brief that we are advised of the nature of defendant's contention below. Apparently defendant's position, in which the trial court coincided, was that the case came within our statute relating to the inclosure of lands by a lawful fence; hence no liability was incurred because plaintiff's lands were open. That such was his contention is obvious because, if this statute does not change the ordinary law of trespass, the complaint undoubtedly contains all averments necessary to the creation of a legal liability on the part of the defendant. It alleges the possession and right of possession in the plaintiff of certain lands, and that, while they were in his possession the defendant, being the owner of a large herd of sheep, against plaintiff's consent, and notwithstanding he expressly warned defendant not to pasture his herd thereon, at the same time pointing out its location, during a stated period, willfully and unlawfully drove and herded these sheep on these lands, to the plaintiff's damage in a certain sum.
The statute which is supposed to be controlling was passed by the Fifth General Assembly, and is found at page 220 of the Session Laws of 1885. The first section describes what shall be a lawful fence in this state, and the third provides that whoever makes and maintains such a lawful fence around his inclosure may recover in a suit for trespass from the owner of any animals which break there-through or whatever damages are thereby sustained, and further provides that no person shall be allowed to recover damages for any injury to crops or grass, or other vegetable products, unless the same at the time of the trespass are inclosed by a legal and sufficient fence. The statute has no bearing whatever upon the case made by the complaint. In Morris v. Fraker, 5 Colo. 425, this court established the rule in this jurisdiction that owners of crops can recover for damages done thereto by the trespasses of cattle only when the same are, at the time of trespass, inclosed by a good and sufficient fence. In Willard v. Mathesus, 7 Colo. 76, 1 P. 690, the doctrine of Morris v Fraker was held inapplicable where the damage was done to crops growing upon uninclosed lands by a flock of...
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Aspen Springs Metro. Dist. v. Keno
...599 P.2d at 951 ; see also Bolten v. Gates, 105 Colo. 571, 573–74, 100 P.2d 145, 146–47 (1940) (collecting cases); Bell v. Gonzales, 35 Colo. 138, 141, 83 P. 639, 640 (1905) ; Sweetman v. Cooper & Mulvane, 20 Colo.App. 5, 8, 76 P. 925, 926 (1904) ; Norton v. Young, 6 Colo.App. 187, 189–90, ......
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Bolten v. Gates
...v. Phelps, 152 U.S. 81, 14 S.Ct. 477, 38 L.Ed. 363, cited in Richards v. Sanderson, and Schecter v. Morgan, supra, and quoted in Bell v. Gonzales, supra, court, by its instruction No. 10, advised the jury 'That the law does not authorize livestock owners to take possession of another's unin......
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Garcia v. Sumrall, Civil 4432
... ... intentionally causing their animals to trespass upon private ... property. Lazarus v. Phelps, 152 U.S. 14 ... S.Ct. 477, 38 L.Ed. 363; Bell v. Gonzales, ... 35 Colo. 138, 83 P. 639, 117 Am. St. Rep. 179, 9 Ann. Cas ... 1094; Chilcott v. Rea, [58 Ariz. 536] 52 ... Mont. 134, 155 P ... ...
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Bullerdick v. Pritchard
... ... destroyed, and are based upon fencing statutes. They are ... clearly inapplicable in a case of trespass by sheep in charge ... of a herder. Bell v. Gonzales, 35 Colo. 138, 83 P ... 639, 117 Am.St.Rep. 179, 9 Ann.Cas. 1094 ... 2. If ... depreciation in rental value, or market ... ...