Kendall v. Samuel McIntyre Inv. Co.
| Decision Date | 19 December 1921 |
| Docket Number | 3701 |
| Citation | 59 Utah 228,203 P. 653 |
| Court | Utah Supreme Court |
| Parties | KENDALL v. SAMUEL McINTYRE INV. CO |
Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.
Action by Joseph Kendall against the Samuel McIntyre Investment Company. From judgment for plaintiff, defendant appeals.
AFFIRMED.
Wm. E Rydalch, of Salt Lake City, for appellant.
George A. Udall, of Salt Lake City, for respondent.
This action was commenced in the district court of Juab County and afterwards transferred to the district court of Salt Lake county by stipulation.
The plaintiff seeks to recover damages for certain alleged trespasses by defendant's cattle on plaintiff's property situated in Juab and Tooele counties. The trespasses are alleged in four causes of action: (1) Upon grain growing on plaintiff's land in Juab county from July 1 to September 1, 1917, damages, $ 175; (2) upon certain stacks of ripened wheat on plaintiff's land in Tooele county during the month of September, 1917, $ 106.80; (3) upon certain stacks of ripened wheat upon other lands of plaintiff in Tooele county in September, 1917, $ 249.20; (4) upon a crop of potatoes growing upon plaintiff's land in Juab county during September of the same year, $ 40.
Defendant, by its answer to each cause of action, admits its corporate capacity, and that it was the owner of certain cattle of the number and description alleged in the complaint, but denies the remaining allegations thereof. The jury to whom the causes were tried found for plaintiff on the first cause of action $ 148.75; on the second, $ 60.44; on the third, $ 188.02; and on the fourth, $ 15.
Defendant appeals from the judgment entered, and relies on certain alleged errors, the assignment of which covers 13 pages of the printed abstract. Many of the alleged errors do not indicate, prima facie, the point of appellant's objection, nor does the argument thereon, in the opinion of the court, disclose sufficient merit in the errors alleged to justify special consideration.
In 1917 plaintiff was in possession of and farming two tracts of land--one in Juab county, upon which he had growing wheat and potatoes, the other in Tooele county, upon which he had raised, harvested, and stacked several stacks of wheat. The land in Juab county was claimed as a homestead entry, while the land in Tooele county was held under a lease from one T. L. Foote.
The testimony of plaintiff and his witnesses as to the first and fourth causes of action tends to show that during the months of July and August, 1917, while plaintiff's wheat was growing on the homestead land in Juab county, and during the month of September of the same year, while his potatoes were growing thereon, numerous cattle of defendant roamed at large over said land, eating and destroying the aforesaid crops, so that when the same were harvested the result indicated that plaintiff had sustained substantial damages.
Plaintiff's evidence also tends to show that upon the leased land in Tooele county, in 1917, he raised and stacked several stacks of ripened wheat, and that during the month of September defendant's cattle trespassed upon the same and ate and destroyed large quantities thereof, by means of which plaintiff sustained considerable damages. These are the damages alleged in the second and third causes of action.
The defendant's witnesses testified to the effect that during the times covered by the complaint cattle and horses of other persons roamed at large upon the premises in question, and that if plaintiff sustained any damage through loss of crops by trespassing animals the damage was caused by animals other than those belonging to defendant. Every controverted question relating to these issues was fully submitted to the jury by appropriate instructions. The court instructed the jury that the burden was on the plaintiff to prove by a...
To continue reading
Request your trial