Chandler v. Little

• Decision Date: 10 February 1917
• Citation: 30 Idaho 119,163 P. 299
• Parties: J. E. CHANDLER, Respondent, v. ANDREW LITTLE, Appellant
• Court: Idaho Supreme Court

163 P. 299

30 Idaho 119

J. E. CHANDLER, Respondent, v. ANDREW LITTLE, Appellant

Supreme Court of Idaho

February 10, 1917

PUBLIC RANGE-REGULATION OF-POLICE POWER-DESTRUCTION OF GRASS-MEASURE OF DAMAGE.

1 Secs. 1217 and 1218, Rev. Codes, making it unlawful for an owner of sheep to herd them or permit them to graze within two miles of the dwelling-house of another, and providing as a penalty that the party injured may recover from such owner for damages sustained thereby, were enacted and are enforced in the exercise of the police power of the state.

2. Under the facts of this case the measure of damage is the loss respondent actually sustained as a direct result of appellant's sheep grazing off and destroying, within two miles of his dwelling-house, grass growing upon the public range which his stock would have fed upon had it not been so grazed off and destroyed.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action to recover penalty for the violation of sec. 1217, Rev Codes. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

E. J Frawley and Scatterday & Van Duyn, for Appellant.

In order for the plaintiff to recover, he must show the actual number of stock that would have been ranged by him upon the public range grazed or herded upon by the sheep within the two miles of his dwelling-house between the dates in which the grazing and herding was done; the reasonable value of said range to him for said pasturage between the dates aforesaid, which valuation must be shown by the testimony of competent witnesses as to the reasonable value of said range. (Roseborough v. Whittington, 15 Idaho 100, 103, 96 P. 437.)

The question of damage will be a question that is to be settled by the jury and not by the witnesses. (McGuire v. Post Falls etc. Mfg. Co., 23 Idaho 608, 131 P. 654; McKissick v. Oregon Short Line R. Co., 13 Idaho 195, 89 P. 629; Axtell v. Northern P. R. Co., 9 Idaho 392, 74 P. 1075; McClain v. Lewiston etc. Racing Assn., 17 Idaho 63, 20 Ann. Cas. 60, 104 P. 1015, 25 L. R. A., N. S., 691; Jenkins v. Commercial Nat. Bank, 19 Idaho 290, 296, 113 P. 463; Chicago, R. I. & P. R. Co. v. Teese, 42 Okla. 188, 140 P. 1166, 52 L. R. A., N. S., 167; Atchison, T. &. S. F. R. Co. v. Wilkinson, 55 Kan. 83, 39 P. 1043.)

Geo. F. Zimmerman and W. A. Stone, for Respondent.

"Any evidence tending to show what the grass was worth when put to any of the uses for which it was valuable should be admitted." (Gulf etc. Ry. Co. v. Matthews, 3 Tex. Civ. 493, 23 S.W. 90; People's Ice Co. v. Steamer Excelsior, 44 Mich. 229, 38 Am. Rep. 246, 6 N.W. 636.)

"The ordinary, and in general, the only legal course is to lay such facts before the jury as have a bearing on the question of damages and leave them to fix the amount." (Sweet v. Ballentyne, 8 Idaho 431, 69 P. 995.)

MORGAN, J. Budge, C. J., and Rice, J., concur.

OPINION

MORGAN, J.

This action was commenced by respondent to recover from appellant the penalty for the violation of sec. 1217, as provided for by sec. 1218, Rev. Codes, which sections are as follows:

"Sec. 1217. It is not lawful for any person owning or having charge of sheep to herd the same, or permit them to be herded, on the land or possessory claims of other persons, or to herd the same or permit them to graze within two miles of the dwelling house of the owner or owners of such possessory claim.

"Sec. 1218. The owner or the agents of such owner of sheep violating the provisions of the last section, on complaint of the party or parties injured before any justice of the peace for the precinct where either of the interested parties may reside, is liable to the party injured for all damages sustained; and if the trespass be repeated is liable to the party injured for the second and every subsequent offense in double the amount of damages sustained."

So far as they apply to the facts in this case, sec. 1217 makes it unlawful for any person owning sheep to herd or permit them to graze upon the public range within two miles of the dwelling-house of another, and sec. 1218, as a penalty for the violation of the former section, makes the owner liable to the party injured for all damages sustained as a direct result of the sheep being so herded or permitted to graze. These sections were enacted and are enforced in the exercise of the police power of the state for the preservation of the peace, quietude and safety of the inhabitants of sparsely settled districts where public range exists and where it has, heretofore, been the subject of contention between settlers and the owners of cattle and horses upon the one hand and of sheep upon the other. (Sifers v. Johnson, 7 Idaho 798, 97 Am. St. 271, 65 P. 709, 54 L. R. A. 785; Sweet v. Ballentyne, 8 Idaho 431, 69 P. 995; Bacon v. Walker, 204 U.S. 311, 27 S.Ct. 289, 51 L.Ed. 499.)

The trial resulted in a verdict for respondent in the sum of $ 100 and judgment was rendered in his...