French v. Cresswell

• Decision Date: 17 May 1886
• Parties: FRENCH v. CRESSWELL.
• Court: Oregon Supreme Court

11 P. 62

13 Or. 418

FRENCH v. CRESSWELL.

Supreme Court of Oregon

May 17, 1886

Appeal from Morrow county.

J.J Ballory, for appellant, P.C. Cresswell.

L Bleux, for respondent, Hannah French.

THAYER, J.

The respondent commenced an action against the appellant and one P.C. Thompson in the justice's court for Heppner precinct, then Umatilla county, Oregon. She alleged in her complaint in said action the following: (1) That at all time hereinafter mentioned in this complaint plaintiff was in possession of and entitled to the possession of, the following described parcels of real estate, to-wit: The S. 1/2 of S.W 1/4 N.W. 1/4 of the S.W. 1/4 of section 9, and the N.E. 1/2 of S.E. 1/4 of section 8, township 3 S., of range 28; also the W. 1/2 of N.W. 1/4, the S.E. 1/4 of N.W. 1/4, and the N.E. 1/4 of S.W. 1/4, of section 8, township 3 S., of range 28 E. of the Willamette meridian,--and all situated in the county of Umatilla and state of Oregon. (2) That on divers days and time between the first day of January, A.D.1884, and the date of the commencement of this action, the defendants unlawfully and willfully permitted their band of sheep to be herded, and unlawfully and willfully did herd the said band of sheep, upon the above-described parcels of real estate, of which plaintiff was disturbed in her possession; whereby plaintiff's grass on said land was trod down and eaten up, injured and destroyed; and whereby plaintiff was prevented from renting said described land, and using the same for her own and lawful purpose, and was hence subjected to great damages, in the sum of $50. Whereupon plaintiff prays judgment for said sum of $50 and her costs and disbursements. The defendants therein filed an answer to the said complaint, in which they specifically denied all the allegations thereof. The plaintiff in the action recovered a judgment against the defendants for $30 and costs, from which judgment the defendants appealed to the circuit court for the county of Umatilla. After the appeal was perfected the county of Morrow was created by an act of the legislative assembly of the state, which included within its territory said precinct of Heppner, and the case was transferred to that county, and there tried by jury, who returned a verdict for the plaintiff for $16.75, upon which the judgment appealed from was entered.

The verdict was quite informal. It was entitled as follows "In the Circuit Court of the State of Oregon for Morrow county,"--with the full names of the parties plaintiff and defendant; but a line was drawn across the name of P.C. Thompson, and it read: "We, the jury, find a verdict for the plaintiff herein, the sum of ($16.75) sixteen 75-100 dollars,"--signed by the foreman of the jury. The appellant's counsel contends that the verdict was so informal that it was a nullity, but I do not think that the defect was so great as to affect the substantial rights of the appellant. It is apparent that the jury intended to render a verdict against the appellant alone, and I think it was sufficient to authorize the judgment to be entered against him.

The appellant's counsel presented several points upon the argument upon which he claimed the judgment should be reversed. The first and main point is that the complaint was defective in not alleging that the respondent's land was fenced, and cited in support of it the case of Campbell v. Bridwell, 5 Or. 311, where it was held that a complaint in trespass by cattle must set forth that the locus in quo was inclosed by a fence built in substantial compliance with title 1, c. 15, Misc.Laws. That decision, it will be observed, was in accordance with the construction which the court placed upon the statute referred to. The court did not, as I understand it, intend to hold that in the absence of the statute a party would be obliged to fence his land before he could maintain an action for damages for trespass by cattle thereon. The common law required the owner of cattle to keep them from going upon the land of another, whether fenced or not, and that would be the rule in this state, in the absence of any statute changing it. But the appellant cannot claim the benefit of said statute in this case, as the act expressly exempted Umatilla county from the effect of its provisions. The legislature passed a local law upon that subject which included Umatilla county, but it required no fence as against sheep. It only included certain other specified animals. I do not think the point was well taken.

The next point which the appellant's counsel attempted to make was that the court erred in allowing the respondent to testify in regard to the acts of trespass committed upon her claim by the sheep. She had been called as a witness, and had testified to the following: "My name is Hannah French. I am the plaintiff in this action. I settled on the land described in the complaint about October 29, 1883, and filed on it. [Here witness produced copy of filing on homestead and timber culture, and they were offered and admitted in evidence.] I fenced part,--made about 80 rods of fencing; and got the material that fall for the foundation of a house, and had a house built on it, and some seeding done. About February, 1884, I furnished the house with a stove, sewing-machine, table, chairs, cook-stove, and bed and bedding. I settled there and began residence about the twelfth of February, 1884, and continued to reside there, and was residing there in February, 1884." She was then asked this question: "Will you please tell the jury in regard to the acts of trespass committed upon you or your claim?" The question was objected to on the grounds "that the question and any answer which said witness might make thereto, and any evidence of trespass, was and would be immaterial and irrelevant and incompetent, for the reasons (1) that the complaint did not state facts sufficient to constitute a cause of action; (2) that no ownership or possession of land by the plaintiff had been proven." The first ground of the objection has already been considered. The second one presents a question of fact which was properly left to the jury. The evidence tended to show that the respondent had such a possession of the land as would enable her to maintain trespass. She had settled upon it, and filed a declaratory statement in the land-office that she had taken it under the homestead and timber culture act, and made improvements thereon, and notified the respondent to keep his sheep off it. Her entry was under claim of right, and her possession was co-extensive with the boundaries of the land claimed. Section 400, Ang. Lim. (5th Ed.) This is the rule where one enters under colorable title, and I think it applicable to this character of cases.

We have noticed the exceptions taken to the admission of testimony...