Gilland v. The Union Pacific Railway Company

• Decision Date: 01 February 1896
• Citation: 6 Wyo. 185,43 P. 508
• Parties: GILLAND v. THE UNION PACIFIC RAILWAY COMPANY
• Court: Wyoming Supreme Court

43 P. 508

6 Wyo. 185

GILLAND v. THE UNION PACIFIC RAILWAY COMPANY

Supreme Court of Wyoming

February 1, 1896

ERROR to the District Court for the County of Laramie, HON. RICHARD H. SCOTT, judge.

Action by George H. Gilland to recover damages from the Union Pacific Railway Company, for the negligent destruction of grass by fire. The material facts are stated in the opinion.

Reversed.

W. R Stoll for plaintiff in error.

There was no joint ownership with the plaintiff in the grass destroyed or any portion thereof. That much is established by the evidence. A joint tenancy has a fourfold unity; namely, a unity of title, of interest, of time, and of possession, the interest being acquired by all, and by the same act or conveyance, commencing at the same time, and held by the same undivided possession. (1 Wash. R. Prop., 676; 2 Abb. L Dict., 546.) A "tenancy in common" is where two or more hold possession of lands or tenements at the same time by several and distinct titles. There must be unity of possession (1 Wash. R. Prop., 685; 2 Abb. L. Dict., 545 546). It is clear that plaintiff was not a joint tenant or tenant in common with any other person. The fact that A pastures his cattle upon the land of B does not make A and B joint owners of the land nor of the grass growing thereon.

Lacey & Van Devanter for defendant in error.

Tenants in common and joint tenants must join in any personal action for any injury done to the common property. (Gilmore v. Wilbur, 12 Pick. 120; Bullock v. Hayward, 10 Allen, 460; Depuy v. Strong, 37 N.Y. 372.) There was a joint tenancy and common ownership of the grass. As to this fact the evidence is clear and conclusive. Plaintiff is bound by his own testimony. This would be true even of a statement made by counsel in open court. (Oscanyon v. Arms Co., 103 U.S. 261.)

POTTER, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

POTTER, JUSTICE.

George H. Gilland brought this action against the Union Pacific Railway Company to recover damages for negligently permitting fires upon its right of way to spread into and upon certain lands alleged to be in the possession of the plaintiff, which fires consumed and destroyed plaintiff's grass growing on said lands; said injury is alleged to have occurred about the 20th day of October, 1891. The damages were placed in the petition at the sum of five hundred dollars.

The answer of the defendant admitted that it was a corporation, and denied generally each other allegation of the petition.

A jury was impaneled to try the case. During the progress of the trial, plaintiff, being examined as a witness in his own behalf, and having testified that the lands upon which the grass was burned were in his possession at the time of the injury, was questioned upon cross-examination respecting the interest of another party in the lands and grass; and the entire controversy now arises upon the testimony of the plaintiff regarding that matter. He admitted in answer to several questions of defendant's counsel that another, whose name was not disclosed, but who was referred to as a German in Nebraska, was jointly and equally interested with him in a portion of the pastures burned over. Upon being recalled in his own behalf, and requested to explain the matter further, he testified as follows:

"I leased that tract of land there, and have the lease there for the tract itself; I entered into an agreement with this German to let him keep his cattle in that pasture." Q. "That was the sum and substance of that." A. "Yes, sir."

On cross-examination: "In that way he became a joint owner." A. "He was interested in the pasture; I leased the pasture, and it was in my name. I entered into an agreement to let him keep his cattle there." Q. "He was to build a fence." A. "That was in the agreement."

Re-direct: "He was to pasture his cattle there; and it was part of the consideration he was to build the fence." A. "Yes, sir." How much of a fence was thus built, or when, is not explained.

It is sufficiently disclosed by the evidence that the lands in question were wild, uncultivated prairie lands, and devoted to grazing, the grass being the natural growth of the soil.

On the one hand it is insisted that the testimony of plaintiff indubitably proves that a third party was jointly interested with the plaintiff and jointly in possession of the grass upon a portion of the lands; viz., all the pasture in section nineteen (19), and that he should have been joined as a party plaintiff, and not being so joined the plaintiff can not recover for the injury and destruction of the grass upon that section of land; while on the other hand it is urged that the true relation between the parties was not that of joint interest or co-tenancy, but that the ownership and possession of the land and grass thereon was in the plaintiff, and the other party had a mere privilege, by permission of the plaintiff, to depasture his cattle thereon, and that this gave him no ownership in the grass. It is not otherwise claimed, but is apparently conceded, and we think it must be, that the plaintiff also had the right to use and occupy the lands, enjoy the benefits of the grass, and depasture his own stock thereon. The other party had not been given any exclusive right, interest, or privilege in the lands or grass.

No testimony was elicited, or attempted to be, respecting the time of making the agreement between the plaintiff and the other party, excepting that it was after the plaintiff had leased the tract in his own name, nor as to the period of time during which whatever rights the other party had were to commence or terminate. It does otherwise appear that the pasture had not been used during the summer, but was being held by plaintiff for the purpose of winter pasturage.

The somewhat meager facts, as distinguished from mere conclusions or generality of statement, disclosed by the record, is embarrassing, and tends to surround a determination of the questions involved with much difficulty.

Upon the conclusion of the evidence, the defendant requested the court to instruct the jury as follows:

"The plaintiff can not recover in this case for grass owned by him jointly with another person, and you will leave out of the account all such grass as was owned by the plaintiff, and any other person or persons jointly."

This instruction was refused, and defendant excepted. The court, however, did give, at the request of plaintiff, the following instruction:

"If you should find that the defendant is guilty of negligence as charged, then the jury should find for the plaintiff the amount of damages, if any, which are found to have resulted from the fire." To this, also, the defendant excepted.

The court submitted to the jury the following special question: "In case you find for the plaintiff you will please state the number of acres burned off in Sec. 19, and also the value of the grass destroyed in said Sec. 19."

A general verdict was returned for the plaintiff, and the damages assessed at $ 315.50. In response to the question submitted by the court, the jury answered that there were 372 acres burned off in Sec. 19, and that the value of the grass destroyed in that section was $ 186. Thereupon the jury were discharged.

Three days later the defendant filed a motion to file an additional defense to conform to the proof and in furtherance of justice, such motion being supported by affidavit showing that the matters then desired to be set up as a defense were unknown to defendant until within about ten hours of the time when the case was called for trial, but that the information at that time obtained was confined to the fact that some German had a joint interest with plaintiff in some of the lands, and that not until the testimony of plaintiff was heard did they learn in what lands there was such an interest. The additional defense thus sought to be interposed, after the trial and verdict, alleged that as to 372 acres in Sec. 19, said land and the grass growing thereon were at the time of the fire in the joint possession of the plaintiff and a certain German, whose name was unknown; that the grass was owned jointly by the plaintiff and said German, and that there is a defect of parties herein in that said German is not made a party.

On the same day the defendant also filed a motion for new trial. Both motions were taken under advisement, and subsequently the motion to file additional defense was sustained, and the motion for new trial was overruled.

The plaintiff excepted to the former ruling, and the defendant to the latter. Thereupon the court ordered that the sum of $ 186, the value of the grass burned off in Sec. 19, be deducted from the amount of damages assessed by the verdict; and rendered judgment non obstante veredicto for the sum of $ 129.50 the balance, after the making of such reduction. To this, the plaintiff excepted, and in this proceeding such order making the reduction, and entering judgment for a less amount than was returned by the jury, is assigned as error.

Defendant files in this court a cross-petition in error, alleging error in the overruling of the motion for new trial, thereby complaining of the refusal to give the instruction requested by the defendant, and of the giving of the instruction, already quoted.

Whatever may be the correct view to be taken of the other matters which are involved, it is quite clear that the instruction requested to be given by the defendant was an erroneous statement of the law as applicable to the case then on trial; and in its refusal the court did not err.

A defect of parties plaintiff, if it appear on the face of the petition, may be taken advantage of by demurrer; if it does not so appear, the objection may be made by...