Hardman v. King
| Decision Date | 23 April 1906 |
| Citation | 85 P. 382,14 Wyo. 503 |
| Parties | HARDMAN v. KING |
| Court | Wyoming Supreme Court |
Rehearing Denied June 12, 1906, Reported at: 14 Wyo. 503 at 510.
ERROR to the District Court, Albany County, HON. CHARLES E CARPENTER, Judge.
Action for trespass by cattle. The facts are stated in the opinion.
Reversed.
N. E Corthell, for plaintiff in error.
No trespass is committed when animals lawfully running at large wander upon and depasture the unenclosed lands of a private owner. (State v. Johnson, 7 Wyo. 515; Cosgriff v. Miller, 10 id., 222.) The rule is the same where private lands are in a general enclosure with public lands and lands of other parties, and the cattle charged to have trespassed were lawfully put into the enclosure upon lands not belonging to plaintiff, and have subsequently strayed upon the latter's premises within the general enclosure. (Hecht v. Harrison, 5 Wyo. 279; Caldwell v. Bush, 6 id., 364; Martin v. Sheep Co., 12 id., 432; Haskins v. Andrews, id., 458.)
H. V. S. Groesbeck, for defendant in error.
The defendant below sought to show a justification in his invasion of the plaintiff's premises, and under the issue in the case presented by the answer containing a general denial only, evidence in the nature of justification was inadmissible. Justification must be specially pleaded, and cannot be shown under a general denial. (2 Bates Pl., 878 and cases cited.) And the particulars should be alleged. (Id.) A license or permission to do acts complained of must be specially pleaded. (Id.; Cone v. Ivinson, 4 Wyo. 203.) At common law, the general issue put in question not only the possession, but also plaintiff's title, but the rule is otherwise in code pleading. Where a defendant has a right of entry it must be pleaded in justification. (Razzo v. Varni (Cal.), 21 P. 762.) Any matter of justification must be specially pleaded in trespass. (Finch v. Alston, 2 Stew. & P., 83.)
In order to properly and lawfully raise the matters complained of both in the motion for a new trial and the brief, that the assessment of damages by the jury was excessive, that specific ground of error of law occurring at the trial should have been urged and insisted upon, and also grounded upon proper instructions to the jury and proper exceptions timely interposed, which has not been done. The rule is well established that errors assigned as ground for a new trial, which are not presented in the brief of plaintiff in error, are deemed to be waived. (Boswell v. Bliler, 9 Wyo. 277.) Defendant's right to turn his cattle upon the land by the permission of the entrywoman did not permit him to invade the possession of another by entry through the fence of that other person, and the case of Caldwell v. Bush, 6 Wyo. 342, presents an array of facts easily distinguishable from the case at bar. Here, the entrywoman never has sought to live upon the land nor to remove the fence bi-secting it, nor in any way to disturb King's possession. Whatever permission she gave to Hardman to turn his cattle upon that portion of the entered land lying within King's enclosure, it does not seem to be anything of a tangible nature, and could not confer upon Hardman any right to invade the possession of King. The adverse possession of King as to that portion of the entered land within his enclosure, had for over five years been consented to by the entrywoman and whatever, and she and the parties claiming to deraign under her, were estopped from demanding a greater possession than she had ever claimed.
The plaintiff in error evidently rests his case on the ground that if one own or controls 160 acres in an enclosure containing 3,200 acres of land belonging to another he has a right to the use of the whole of the lands within the enclosure, just so long as he does not wilfully drive or herd his stock on the lands of another within the enclosure. Such a view of the case, applied to a limited area enclosed, as in the case at bar, would be absurd, as it is clear that cattle will roam.
The defendant in error, James King, Sr., commenced this action against the plaintiff in error, James Hardman, in the District Court of Albany County, to recover damages for alleged trespass upon his lands. The petition is in two counts, one charging a continuing trespass in 1903, and the other a like trespass in 1904. Both counts are identical except as to the year, and allege that on the first day of June of said years and on divers other days between that day and the seventh day of September in said years, said defendant unlawfully and with force broke and entered the close of plaintiff situated around and enclosing the following lands and premises of plaintiff, to-wit: Sections 3, 5, 9, 16 and 17, Tp. 13 N., R. 75 W., in Albany County, Wyoming, and depastured the same and said lands of plaintiff, with cattle, trod down the grass and crops of plaintiff and converted the same to his own use, and otherwise injured the said lands and premises of plaintiff to his damage in the sum of one hundred dollars, for which sum with interest he prayed judgment. The defendant's answer to each count of the petition was a general denial. The case was tried to a jury, resulting in a verdict for plaintiff on both counts. A motion for new trial was denied by the court, judgment entered on the verdict and defendant brings error.
It was admitted at the trial that King was the owner of sections 3, 5, 9 and 17, and that he had a lease of section 16. It was also conceded in argument in this court that King's lands, except a small fraction of section 17 and a part of section 16, were enclosed by a fence, which enclosure also included sections 4, 8, W. 1/2 10 and part of S. E. 1/4 10 which were vacant unoccupied government lands, and also included the N. E. 1/4 of section 10, upon which Jessie K Hardman, daughter of plaintiff in error had a homestead filing. King owned the greater part of this fence but there was a small part of it extending across the southeast corner of said homestead which belonged to Hardman or to said entrywoman, in which piece of fence there were bars opening onto the county road. It was through these bars that Hardman turned his cattle onto said homestead and allowed them to roam at will. There is no evidence in the record that he at any time drove the cattle from either said homestead or the government lands onto King's land. The cattle were peaceably put upon said homestead and without objection from anyone, and from there they strayed upon King's land, there being no fence separating his lands from said homestead or the government lands included in the enclosure. Two witnesses on behalf of King testified that on one occasion about June 20 or 21, 1904, Hardman's son drove the cattle from the west part of section 16 onto section 17, while Hardman's son who did this driving of the cattle testified on behalf of his father that he drove them from section 16 through a...
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Hardman v. King
...382 14 Wyo. 503 HARDMAN v. KING Supreme Court of WyomingJune 12, 1906 14 Wyo. 503 at 510. Original Opinion of April 23, 1906, Reported at: 14 Wyo. 503. Rehearing SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur. OPINION ON PETITION FOR REHEARING. SCOTT, JUSTICE. Defendant in error has f......