Hanson v. Seawell

• Court: United States State Supreme Court of Idaho
• Writing for the Court: MCCARTHY, J.
• Citation: 204 P. 660,35 Idaho 92
• Decision Date: 18 February 1922
• Parties: H. HANSON, Respondent, v. LESTER C. SEAWELL, Appellant

204 P. 660

35 Idaho 92

H. HANSON, Respondent,
v.
LESTER C. SEAWELL, Appellant

Supreme Court of Idaho

February 18, 1922

TRESPASS-INJURY TO GROWING GRASS-BY WHOM ACTION LIES-PARTY IN POSSESSION UNDER CLAIM OF RIGHT-MEASURE OF DAMAGES-PROOF OF VALUE OF GRASS.

1. As against a mere tort-feasor, actual possession of land, under a claim of right, is sufficient to maintain an action of trespass for injury to growing grass and crops.

[35 Idaho 93]

2. The proper measure of damages in such case is the value of the grass.

3. When the land trespassed upon is pasture land, proof of its rental value as pasture is admissible to show the value of the grass.

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

Action for trespass. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

Scatterday & Stone, for Appellant.

In actions for damages, the value of the thing injured at the time of the injury must be proved and the facts upon which the value is based must be given. (Axtell v. Northern P. Ry. Co., 9 Idaho 392, 74 P. 1075; McClain v. Lewiston etc. 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, 113 P. 463; Chicago etc. R. Co. v. Teese, 42 Okla. 188, 140 P. 1166, 52 L. R. A., N. S., 167.)

The measure of the damages for the destruction of growing grass is its value at the time and place it was destroyed. (Risse v. Collins, 12 Idaho 689, 87 P. 1006.)

J. A. Elston and Thompson & Bicknell, for Respondent.

The complaint states a cause of action against the defendant. (Secs. 1908, 1909, C. S.; The Mode, Ltd., v. Myers, 30 Idaho 159, 164 P. 91.)

"The possession of real estate is prima facie evidence of the highest estate in the property, to wit, a seisin in fee." (Steele v. Fish, 2 Minn. 153.)

MCCARTHY, J. Rice, C. J., and Dunn and Lee, JJ., concur.

OPINION

MCCARTHY, J.

This is an action for trespass tried originally in a justice's court, resulting in judgment for respondent. On appeal to the district court it was tried by the court without a jury. The court found that the respondent was the holder and in possession of the land described in the complaint, that the defendant was the [35 Idaho 94] owner or reputed owner having in his charge, care and control, certain sheep; that the defendant and his agents unlawfully permitted certain of his said sheep to go upon the lands of respondent, and that said sheep did eat up and tramp out certain grasses thereon growing to the damage of plaintiff in the sum of $ 100. Judgment was entered accordingly.

The first specification of error is that the complaint does not state facts sufficient to constitute a cause of action. The complaint in a justice's court may be an informal statement of the cause of action. (Rabb v. North American Acc. Ins. Co., 28 Idaho 321, 154 P. 493.) The complaint is awkwardly drawn, and far from clear. However, buried in a mass of immaterial allegations are the following: that the plaintiff was the holder and in possession of 640 acres in Payette county, state of Idaho, describing it; that a large band of sheep belonging to defendant were herded upon this land, thus consuming and killing the grass to plaintiff's damage in the sum of $ 250. As against a mere tort-feasor, actual possession...