Gillmor v. Gillmor, 860302-CA
| Decision Date | 16 October 1987 |
| Docket Number | No. 860302-CA,860302-CA |
| Citation | 745 P.2d 461 |
| Parties | Florence J. GILLMOR, Stephen T. Gillmor and Charles F. Gillmor, Plaintiffs and Respondents, v. Edward Leslie GILLMOR and Gillmor Livestock Corporation, Defendants and Appellants, GILLMOR LIVESTOCK CORPORATION, a Utah Corporation, Plaintiff and Appellant, v. Stephen T. GILLMOR, Florence J. Gillmor and Charles F. Gillmor, Defendants and Respondents. |
| Court | Utah Court of Appeals |
E.J. Skeen, Clifford L. Ashton, Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, for plaintiff-appellant.
James B. Lee, John Wilson, Salt Lake City, for Stephen and Florence Gillmor.
Before JACKSON, DAVIDSON and BENCH, JJ.
Edward Leslie Gillmor appeals a judgment against him for trespass of his cattle and sheep on lands possessed by Stephen T. Gillmor. We affirm.
The progenitors of the parties in these actions amassed 33,000 acres of ranch properties in four Utah counties. Common ownership descended one-half to Florence Gillmor, one-fourth to Charles F. Gillmor and one-fourth to Edward Leslie Gillmor. Prior to 1974, Edward leased the interests of Florence and Charles and operated his livestock business on the properties as a unit. In 1974, the three owners negotiated to separate their respective interests. Their efforts to divide the properties failed, and a partition action was filed. During the partition litigation, Edward continued to operate his livestock business on the common properties.
On February 14, 1981, the Third District Court entered a decree of partition. The 33,000 acres were divided into sixteen blocks. Each of the parties was awarded a pro rata share of acreage in each of fifteen blocks. The sixteenth block was ordered sold. The partition plan was basically upheld on appeal to the Utah Supreme Court in Gillmor v. Gillmor, 657 P.2d 736 (Utah 1982). Thereafter, Florence and Charles leased their three-fourths of the lands to Stephen T. Gillmor, the principal plaintiff in this case. While Stephen operated his sheep business on the three-fourths of Gillmor lands in his possession, Edward continued to graze the same number of livestock even after the partition.
After numerous instances during 1981 of trespass by Edward's livestock onto Gillmor land in Stephen's possession, Stephen, together with Florence and Charles Gillmor, filed this action to recover damages and to enjoin further trespass. Edward counterclaimed for similar relief and filed an action, which was consolidated with Stephen's, seeking a declaratory judgment that Stephen had no interest in certain leased grazing lands. Trial was held in October, 1983. Florence and Charles Gillmor did not appear and took no active part in the litigation. During final arguments, Stephen submitted a trial brief on the issue of damages based on his calculations. In its memorandum decision, the trial court adopted Stephen's calculations by reference, and the factors itemized became the court's findings. The court also dismissed Edward's counterclaim for trespass and his consolidated complaint with prejudice.
On appeal, Edward argues the evidence was insufficient to support the damage awards to Stephen for forage loss and for decreased lamb production. This Court presumes the findings of fact of the trial court to be correct. Hal Taylor Assoc. v. Unionamerica, Inc., 657 P.2d 743, 747 (Utah 1982). It is not our function to make findings of fact because this Court does not have the advantage of seeing and hearing witnesses testify. Rucker v. Dalton, 598 P.2d 1336, 1338 (Utah 1979). On review, "this Court views the evidence and all the inferences that can reasonably be drawn therefrom in a light most supportive of the trial court's findings." Horton v. Horton, 695 P.2d 102, 106 (Utah 1984). Unless clearly erroneous, findings of fact will not be set aside, and, if there is a reasonable basis in evidence, a trial court's award of damages will be affirmed on appeal. Utah R.Civ.P. 52(a); Katzenberger v. State, 735 P.2d 405 (Utah App.1987).
Stephen's calculated damages for trespass by sheep, as submitted to the trial court, were as follows:
For trespass by cattle, the trial court awarded the full $17,504.04 as requested by Stephen. 1
Edward does not challenge the fact that his livestock trespassed on Gillmor land in Stephen's possession. Nor does Edward challenge the dollar value of an animal unit month (A.U.M.) used by Stephen in his calculations. 2 Edward does argue that for Stephen to make a case for a definite amount of damages, he had the burden of proving (1) the number of trespassing livestock, and (2) the length of time that number of livestock trespassed on Stephen's leased land. Edward contends Stephen failed to meet his burden. We disagree.
At trial, Edward and his son, as adverse witnesses in Stephen's case and on their own behalf, both testified that prior to 1981, they historically grazed approximately 386 cattle and 2,700 sheep on all the Gillmor lands. After the partition decree in February, 1981, Edward continued to graze the same numbers of cattle and sheep despite the fact he had available to him only one-fourth the land he previously utilized. Other witnesses for Stephen testified although Edward was aware of the partition decree, he maintained he had a one-quarter ownership in all the land or that he owned one foot out of every four which he intended to use all year.
Stephen and his son both testified of numerous recorded instances during 1981 when they identified Edward's livestock on their land. They spotted Edward's livestock on their land once in March, eighteen times in April, once in June, six times in July, ten times in August, once in September, three times in October, five times in November and once in December. Stephen and his son spotted Edward's cattle in numbers ranging from 300 head to a "small bunch" and sheep in numbers from 2,200 head to a "small bunch."
Edward argues Stephen's numerous recorded instances of trespass were insufficient to support the numbers of livestock and the duration periods used by Stephen in his calculations. Alone, the recorded instances probably are insufficient to support the damages awarded. However, when considered with all the evidence, the trial court could have reasonably inferred facts to support the damages. Bendorf v. Volkswagenwerk Aktiengeselischaft, 90 N.M. 414, 564 P.2d 619, 624 (Ct.App.1977). Furthermore, "inferences drawn from circumstantial evidence can be as probative as direct evidence." Anderson v. Burlington Northern, Inc., 709 P.2d 641, 645 (Mont.1985). Edward admitted he stocked his one-quarter share of the land with the same number of livestock for which he previously required the entire land. His stepson told Stephen they had run out of lamb feed on their land. Coupled with Stephen's documented evidence of trespass, this evidence reasonably supports the rational and logical conclusion that approximately three quarters of the time, Edward's livestock would move onto the surrounding lands of Stephen Gillmor in search of food. Therefore, in his calculations, Stephen multiplied the number of A.U.M.'s by 75%.
Edward contends the trial court failed to take into account his use of separate leased grazing lands. Edward's son testified 1,500 sheep were placed on separate leased land in early June and approximately 1,125 sheep remained on Gillmor land. Although Stephen's calculations did account for the time the 1500 sheep were not on his land, the court did not award any damages for trespass by these sheep. Edward testified 217 head of cattle were on separate leased land from early June to mid-October. Stephen accounted for this time as well and was awarded the difference in damages. The trial court clearly did take into account the...
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