Harrison v. Adamson

• Decision Date: 25 October 1892
• Citation: 53 N.W. 334,86 Iowa 693
• Parties: HARRISON v. ADAMSON ET AL.
• Court: Iowa Supreme Court

86 Iowa 693

53 N.W. 334

HARRISON

v.ADAMSON ET AL.

Supreme Court of Iowa.

Oct. 25, 1892.

Appeal from district court, Palo Alto county; LOT THOMAS, Judge.

Action at law to recover damages of the defendants for herding cattle upon certain wild and uninclosed land, by reason of which the grass thereon was pastured and permanently injured and practically destroyed. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendants appeal.Soper, Allen & Morling, for appellants.

T. W. Harrison, in pro. per.

ROTHROCK, J.

1. The plaintiff is the owner of a section of wild land in Palo Alto county. In the years 1886 and 1887 the defendants were the owners of a herd of 350 cattle, which were kept in the neighborhood of plaintiff's land. The evidence shows beyond question that in the pasturingseasons of 1886 and 1887 these cattle were not permitted to run at large, but were kept and herded upon uninclosed wild land, and attended and restrained by a herder. It further appears that in both of said years they were for part or all of the herding season kept and herded on the plaintiff's land, and that by reason of the land being grazed for the two years the prairie grass was greatly damaged, so that much of the land grew up with weeds. Some time before the year 1886 the plaintiff caused one rod in width around his land to be plowed and broken up, and there was evidence sufficient to warrant the jury in finding that the damage done by the defendants' cattle was with full knowledge on the part of the defendants that the plaintiff objected to and protested against the use of his land by the defendants. This case has once before been in this court upon an appeal from an order overruling a demurrer to the plaintiff's petition. See 76 Iowa, 337, 41 N. W. Rep. 34. We held on that appeal that where cattle not running at large, but in charge of the owner or his agent, are driven and kept upon the uninclosed land of another against his will, the owner of the cattle is liable to the owner of the land for the damage to the grass growing on the land. The cause was tried upon its merits in the light of the opinion upon the former appeal, and without setting out the evidence we may say that the jury were fully warranted in finding that the defendants were liable for what damage was done by their cattle. This disposes of the question that the verdict is not supported by the evidence.

2. It is claimed in behalf of appellants that the instructions given by the court to the jury on the measure of damages are erroneous. Those complained of are as follows: “The measure of the plaintiff's damage for the loss or injury to the grass for the years 1886 and 1887, if you find that he has sustained any damages in that regard, will be the actual damage done to the grass crop for these years by the defendants' cattle; that is, the difference between the actual market value of the crop upon the land for those years as it was and what its market value would have been had the plaintiff's cattle not been driven or herded or pastured upon the land. To state it in other words, the question for you to determine from the evidence in fixing the amount of damages, if any, on this claim is, how much less was the actual rental value of the land for the grass crop of these years by reason of the defendants' cattle having been driven or herded upon the land than it would have been had the cattle not been driven or herded upon the land? If you find that the plaintiff is entitled to recover...