Bolten v. Gates

• Decision Date: 04 March 1940
• Docket Number: 14549.
• Citation: 105 Colo. 571,100 P.2d 145
• Parties: BOLTEN et al. v. GATES et al.
• Court: Colorado Supreme Court

100 P.2d 145

105 Colo. 571

BOLTEN et al. v. GATES et al.

No. 14549.

Supreme Court of Colorado

March 4, 1940

In Department.

Error to District Court, Routt County; Charles E. Herrick, Judge.

Action by Isadore Bolten and others, a copartnership, doing business under the name and style of Wyoming-Colorado Sheep Company against George M. Gates and another to recover damages for and enjoin trespasses on plaintiffs' lands by cattle belonging to defendants, who filed cross-complaints for damages because of negligent and wanton manner in which plaintiffs drove such cattle from their lands and other lands. Judgment for defendants on the complaint and cross-complaints, and plaintiffs bring error.

Affirmed.

J. F. Meador, of Craig, for plaintiffs in error.

Addison M. Gooding, of Steamboat Springs, for defendants in error.

KNOUS Justice.

The parties to this litigation occupy the same relative position here as in the lower court and reference will be made to them respectively as plaintiffs and defendants. Plaintiffs, as owners and lessees of a large tract of unenclosed grazing land in Routt county, sought damages, actual and exemplary as well as injunctive relief against defendants for alleged trespasses by the latter's cattle upon said lands during the years 1936 and 1937. By cross complaints defendants asked for actual and exemplary damages said to have been sustained by them in such years by reason of the alleged careless, reckless, negligent and wanton manner in which the plaintiffs, by means of dogs and men on horseback, drove and expelled defendants' cattle not only from plaintiffs' lands, but also from unfenced and unenclosed lands in and to which plaintiffs had and claimed no right. The jury returned verdicts finding the issues joined on plaintiffs' complaint against plaintiffs and in favor of defendants and awarded $350 actual damages and $1,000 exemplary damages to defendants on their cross complaints. Judgment was entered accordingly and plaintiffs assign error.

Plaintiff contend that the adverse verdict on the issues raised by their complaint principally resulted from the action of the court in the giving of Instruction No. 13. The objection thereto goes to its form as well as its impropriety. In this instruction are embodied the provisions of sections 56, 57 and 58, chapter 160, '35 C.S.A., to which reference is commonly made as the 'Colorado fence law.'

In determining the correctness of the court's action in instructing on this subject, it is essential that we cursorily view the state of the law in Colorado pertaining to the liability of an owner for the trespass of his cattle. It is established that one who turns his cattle out to graze unrestrained, upon lands where he has a right to so release them, is under no obligation to prevent them entering upon the unenclosed premises of another and if they do so enter through following their natural instincts, he is not responsible for the damage occasioned thereby. Richards v. Sanderson, 39 Colo. 270, 89 P. 769, 121 Am.St.Rep. 167. On the other hand, it is equally well settled that the absence of a lawful fence does not justify a willful trespass. Bell v. Gonzales, 35 Colo. 138, 83 P. 639, 117 Am.St.Rep. 179, 9 Ann.Cas. 1094; Nuckolls v. Gaut, 12 Colo. 361, 21 P. 41; Norton v. Young, 6 Colo.App. 187, 40 P. 156; Sweetman v. Cooper, 20 Colo.App. 5, 76 P. 925; Schecter v. Morgan, 66 Colo. 35, 178 P. 564; Osborne v. Osmer, 82 Colo. 80, 256 P. 1092.

In this connection it is further to be observed that under the fence statute an owner of livestock, turning the same at large upon land where he has a right so to do, is not liable in damages for their invasion of the private lands of another who fails to maintain a lawful fence, even though the former expects and intends that such trespass will be committed. Williamson v. Fleming, 65 Colo. 528, 178 P. 11. While such expectation or intention may be a circumstance worthy of consideration in cases of alleged willful trespass, that alone will not constitute a sufficient basis for recovery in the absence of overt acts. This subject is well discussed in Martin v. Platte Valley Sheep Co., 12 Who. 432, 76 P. 571, 78 P. 1093.

Plaintiffs avowedly proceeded on the theory that the trespass of which complaint is here made was deliberate and willful. The complaint charged that during the years involved defendants, who were alleged to be the owners of about 300 head of cattle which they were accustomed to run on the open range during the summer months, leased an 80 acre tract adjacent to plaintiffs' unenclosed lands, purportedly for the purpose of grazing said cattle thereon, but that, as defendants well knew, this tract was insufficient for that purpose, both as to feed and water; that defendants further knew that in order to keep and feed their cattle upon the range it would be necessary that they be grazed upon plaintiffs' lands; and that for the purpose of utilizing the same the defendants, in addition to driving their cattle thereon, put out salt on said lands to attract their cattle thereto, all without the permission of the plaintiffs and against their remonstrances.

By their answer defendants conceded the ownership of the cattle as alleged; admitted they grazed said cattle on the open range; that the described 80 acre tract alone was inadequate for the grazing of their cattle, and denied all the other allegations of the complaint. Defendants further affirmatively alleged that their cattle were released upon lands where they had a right to place them, and that if any of said cattle grazed on plaintiffs' lands, such lands at the time were not fenced in accordance with statutory requirements. Generally, under the facts presented, it may be conceded that a considerable number of defendants' cattle were on plaintiffs' lands during the grazing seasons involved, but there was no proof that they were ever actually driven there by defendants. The evidence of plaintiffs was to the further effect that in the spring of 1936 defendants turned out their cattle, presumably the entire herd, on what was called the Eckstein homestead, about one-quarter of a mile from the boundary of lands owned by plaintiffs; that in 1937 defendants released them on the 80 acre tract described in the complaint and that plaintiffs found salt on their lands near the stock watering places thereon. Defendants testified that during both years, besides the 80 acre tract described in the complaint and the...