Cosfriff Brothers v. Miller

Citation10 Wyo. 190,68 P. 206
PartiesCOSFRIFF BROTHERS v. MILLER
Decision Date31 March 1902
CourtUnited States State Supreme Court of Wyoming

ERROR to the District Court, Carbon County, HON. DAVID H. CRAIG Judge.

Action by Isaac C. Miller against John B. Cosgriff, Thomas A Cosgriff and James B. Cosgriff, co-partners under the firm name and style of Cosgriff Brothers, in the District Court sitting within and for the County of Carbon, for injunction and for damages in relation to certain alleged trespasses upon lands claimed by the plaintiff situated in said county said trespasses being alleged to have occurred by driving sheep upon and depasturing said lands. A temporary injunction was granted. From a judgment rendered on the verdict of a jury in the sum of $ 6,500 damages in favor of the plaintiff the defendants prosecuted error. The material facts are stated in the opinion.

Affirmed.

F. Chatterton and Van Orsdel & Burdick, for plaintiffs in error.

First--Under the state of facts set forth in the petition and answer, taken together, there was no cause of action. (a) The old common law rule that one must restrain his cattle, and that the owner of a close need not fence, does not prevail in this country. (b) The fence and brand laws are inconsistent with such common law rule, and, therefore, repeal it.

Second--It is unlawful to fence or use private lands so as to prevent others from having access to the government lands interspersed therewith, and, therefore, the public have a right of way.

Third--There is no trespass in driving and grazing sheep upon the unenclosed lands of another, and especially is this so where there are no means of distinguishing them from other adjacent and unfenced and unoccupied government lands.

Fourth--To constitute such a trespass as is charged in the petition, intent must be shown. If a person shows that he did not know he was trespassing, under a charge of malicious trespass, he is not liable.

Even if this were a trespass, in which there was a cause of action, we contend:

First--That punitive or exemplary damages could not legally become a question for consideration by the jury upon the trial of the case. (a) Where the act complained of is punishable as a crime, no punitive or exemplary damages are allowable. (b) Punitive damages cannot be had where one acts in good faith under a reasonable, though mistaken, belief that he has a right. (c) In order to justify giving punitive or exemplary damages, the act must be done with evil intent and purpose to injure, or the act must be done with fraud, malice or through gross negligence. (d) Punitive or exemplary damages cannot be recovered where actual damage is not shown.

Second--Only such damages as are compensatory for the wrong done are allowable.

Third--Punitive or exemplary damages should never be allowed--unless, perhaps, in cases of injuries to the person--and, therefore, as it is a new and open question in this State, should not become incorporated as a part of the law of the State other than by Legislative enactment.

Fourth--Evidence of special damage is not admissible unless such damage is pleaded.

Under the facts in this case, there was no right of action for the reason: That the common law rule of England requiring one to restrain his cattle, and not requiring one to fence his close, does not and never did prevail in or become, in reason or by custom, applicable to this country; and especially is this true of these Western States, where the raising of herds of cattle entirely by grazing, and without enclosures, upon the open ranges, has been the custom from the beginning, and is, by reason of that privilege, the chief and until very recently almost the only support of the inhabitants of the State. (See Buford v. Houtz, 5 Utah, 591, affirmed in Buford v. Houtz, 133 U.S. 320, approved by Lazarus v. Phelps, 152 U.S. 81; Moses v. Ry. Co., 8 L. R. A., 135; Waters v. Moss, 12 Cal. 535; Comerford v. Duprey, 17 Cal. 306; Logan v. Gedney, 38 Cal. 579; Hecht v. Harrison, 5 Wyo., 286; Morris v. Fraker, 5 Colo., 425; Woodward v. Purdy, 20 Ala. 379; R. R. Co. v. Peacock, 25 Ala. 229; R. R. Co. v. Williams, 53 Ala. 595; Hurd v. Lacy, 53 Ala. 595; Jonier v. Winston, 68 Ala. 129; Hurd v. Lacy, 93 Ala. 427; 36 Ark. 562; Misner v. Lightshall, 13 Ill. 609; Seeley v. Peters, 10 Ill. 130; Ry. Co. v. Cauffman, 38 Ill. 424; Headen v. Rust, 39 Ill. 186; Stoner v. Shugart, 45 Ill. 76; Wagner v. Bissell, 3 Iowa, 396; Heath v. Coltenback, 5 Iowa, 490; Alger v. R. R. Co., 10 Iowa 268; Smith v. Ry. Co., 34 Iowa 506; Ry. Co. v. Johnson, 65 Tex. 389; Pace v. Potter, 85 Tex. 476; Gorman v. Pacific R. R. Co., 26 Mo. 445; R. R. v. Kenney, 41 Mo. 271; McPheeters v. R. R. Co., 45 Mo. 22; R. R. Co. v. Elliot, 4 O. S., 474; Kerwhacker v. R. R. Co., 3 O. S., 172; Campbell v. Bridewell, 5 Ore., 311; Walker v. Bloomingcamp, 43 P. 175; Sprague v. Ry. Co., 6 Dak., 86; R. R. Co. v. Patton, 31 Miss. 156; Knight v. Abert, 6 Pa. St.; Stadwell v. Rich., 14 Conn. 292; Wright v. Wright, 21 Conn. 344; Larkin v. Taylor, 5 Kan., 434; Darling v. Rodgers, 7 Kan., 592; Chase v. Chase, 15 Nev. 259; Baylor v. R. R. Co., 9 W. Va., 270; Blaine v. R. R. Co., 9 W. Va., 252; R. R. Co. v. Baber, 42 Ga. 300; Murray v. R. R. Co., 10 Rich., 227; Laws v. R. R. Co., 7 Jones, 468; Jones v. Witherspoon, 7 Jones, 555; 66 Am. Dec., 552.)

The Legislature of the Territory, recognizing the inapplicability of the common rule to the conditions which prevail in the West, and the weight of authority against the rule, enacted, in December, 1869, a fence law. (Chapter 51, Comp. Laws, 1876, which is, with but few changes, now the law of the State; Chap. 5, Title 13, Div. 1, Rev. Stat., 1899.) By this law a right of action in trespass for depredations of live stock upon lands is only given where lands are enclosed by a "lawful" fence. If the common law rule had prevailed here there could have been no need of such legislation. In further recognition of the fact that the rule does not apply, and that there is no right of action against a person for using or grazing upon unfenced lands owned by another, the Legislature, in order to protect the State in its open and unfenced land holdings scattered through its entire area, enacted a trespass law, applicable to state lands only. (Sec. 838, R. S., 1899.)

It would also seem that the Legislature recognized the principle for which we contend in enacting the brand laws. (Chap. 1, Title XIV, Div. I, R. S., 1899.) That these fence and brand laws conflict with and repeal the common law rule, and negative its existence, see Waters v. Moss, 12 Cal. 533; Comerford v. Duprey, 17 Cal. 308; Morris v. Fraker, 5 Colo., 425; Logan v. Gedney, 38 Cal. 579; Fant v. Lyman, 22 P. 120 (Mont.).

Second--It has become an established rule in this Western country, not only by long custom, but by United States statute, that it is unlawful to so fence or use private lands as to prevent others from having access to the government lands interspersed therewith, and, therefore, the public have a right of way, or way of necessity, over private lands, and especially is this so where lands are unfenced, as in the case at bar, and the owner of odd numbered sections of land acquired from the Union Pacific Railroad Company, who, in turn, acquired such lands from the government, takes and holds such lands subject to an easement of right of way, to all even numbered sections interspersed therewith, which easement was impliedly reserved by the United States government at the time of its grant to the Union Pacific Railroad Company. (U. S. v. Buford, 8 Utah, 176; U. S. v. Camfield, 59 F. 562.)

The case last cited is affirmed by the Circuit Court of Appeals in 66 F. 101, and holds that the case of United States v. Douglas-Willan Sartoris Co., 3 Wyo., 288, is not the law; and the case is also affirmed by the United States Supreme Court in 167 U.S. 518.

Third--There can be no trespass in this Western country in driving and grazing sheep upon the unenclosed lands of another. (Buford v. Houtz, 133 U.S. 320; Lazarus v. Phelps, 152 U.S. 81.)

In order to maintain such trespass as alleged, intent must be shown. In the case at bar the plaintiffs in error proved that they simply desired to graze the government lands, as they had a right to do, and there is no evidence indicating any other intent. They proved they did not know, and the conditions of the lands--no marks being present to distinguish them by--is evidence that they could not know they were upon the lands belonging to defendant in error. (Lowe v. Salt Lake City, 13 Utah 91; Yoakum v. State, 21 Tex. App., 260.)

But even though it be held there was a right of action in trespass, nevertheless we submit that in this case, under the pleadings and proof, no more than nominal damages could be found. It is elementary that proof must conform to the allegations contained in the pleadings. There was evidence introduced, over objection, by which an attempt was made to prove the loss of sheep by reason of the alleged trespass, said loss occurring throughout the winter and beginning more than two months after bringing of suit. This evidence was improper, there being no allegation in the pleadings of any loss of sheep. The only allegation of direct and actual damages is for the loss of grass to the amount of $ 2,800, as to the value of which there was no evidence whatever given upon which the jury could base a finding. The verdict was, therefore, not only contrary to law, but was not sustained by evidence, and resulting damages such as were improperly attempted to be shown are too remote. (Clark v. Nevada L. & M. Co., 6 Nev., 203; Watt v. Ry., 23 Nev. 154; Ry. Co. v. Johnson, 65 Tex. 389; Thayer v. Brooks, 17 O., 469.)

Under the pleadings, the evidence, and the law applicable thereto the verdict of...

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