Kester v. Wagner

Decision Date26 January 1915
Docket Number773
PartiesKESTER v. WAGNER
CourtWyoming Supreme Court

ERROR to the District Court, Sheridan County; HON. CARROLL H PARMELEE, Judge.

The action was brought by Ernest A. Kester against William E Wagner to recover damages for an alleged trespass, the plaintiff claiming exemplary as well as actual damages. There was a verdict for the plaintiff, including exemplary damages and a new trial was granted on motion of the plaintiff, on the refusal of the defendant to remit the amount of the exemplary damages. Thereupon the plaintiff refused to further prosecute the action in the trial court and judgment was entered dismissing the same. The plaintiff brought error. The material facts are stated in the opinion.

Affirmed.

H. N. Gottlieb, for plaintiff in error.

The procedure in the case, in connection with the granting of the new trial, presents a reviewable final order. (Kahn v. Ins. Co., 4 Wyo. 419, 34 P. 1059). Trespass is a possessory action, and one who has filed upon government land and is in possession may maintain the action, and the general rule of damages applies. (Beaufort L. & I. Co. v. Lumber Co., 30 L. R. A. (N. S.) 243 and note; 38 Cyc. 1129, 1134). Under the circumstances shown by the evidence the defendant is liable in trespass for the invasion of the plaintiff's premises. (Bacon v. Sheppard, 6 Halst. 197, 20 Am. Dec. 583; 28 Ency. Law, (2nd Ed.) 239; 38 Cyc. 1012-1013; Cook v. Redman, 45 Mo.App. 397). Maud Binford's entry and the alleged permission and authority from her afforded no legal justification or excuse for the defendant's acts. When plaintiff's entry was reinstated as of the date of its cancellation, it stood as though it had never been cancelled, and anyone trespassing on the land in the meantime became responsible to him. Justification of a trespass by reason of apparent right obtained from another can only result from a showing of the following facts: 1. That the party through whom the claim is made had actually obtained possession of the premises. 2. That the defendant came in by title--by lease or deed--from such other party. 3. That the claim by title from the other party was bona fide, and not a fraudulent device to give color of legality. No such showing was made in this case, but on the contrary it appeared: 1. That Maud Binford was never in possession, but that the plaintiff had been in unquestionable possession from the time of his original entry. 2. That defendant did not claim by title from Maud Binford, but merely by license or permission, and invaded the premises in her alleged right. 3. That there was not a bona fide reliance on Maud Binford's entry, but the same was used as a fraudulent device to give color of legality.

The court has no authority to disturb a verdict which is supported by some evidence, even if the jury's findings of fact are not such as the court would have made. (23 Ency. Law, (2nd Ed.) 564). Where the evidence on material facts is conflicting, or where, the facts being undisputed, different minds might draw different conclusions from them, the question is one of fact for the jury. (23 Ency. Law, (2nd Ed.) 565, 566). Exemplary damages were properly allowed upon the evidence and the amount allowed was not excessive. (Wellman v. Dickey, (Me.) 2 A. 133; Kennedy v. Erdman, (Pa.) 24 A. 643; Simpson v. Lee, (Tex.) 34 S.W. 1053; Smith v. Thompson, (Md.) 39 Am. Rep. 409; Standard S. Mfg. Co. v. U.S. 33 S.Ct. (U.S.) 9).

Burgess & Kutcher, for defendant in error.

The new trial was properly granted because: 1 The cause of action in favor of the plaintiff was not established. 2. The evidence does not justify exemplary damages. 3. The court erred in its instructions. 4. And there was error in refusing instructions requested by defendant. Although in granting the motion for new trial the court expressly found that it was not well founded, except as to the ground relating to exemplary damages, the ruling should, we take it, be sustained if it was proper to grant the motion on any ground therein alleged. The decision of the land department of May 27, 1911, cancelling Kester's entry is conclusive upon both parties to this suit, and cannot be collaterally attacked, although erroneous. (Caldwell v. Bush, 6 Wyo. 354). By the cancellation of that entry the land reverted to the United States, and again became part of the public domain. Thereafter, Kester had no right in the land. Prior to that he was at most a licensee subject to a revocation of the license, and such license was revoked when the land department allowed the Binford entry. (Caldwell v. Bush, supra; Bank v. Holst, 95 N.W. 932). Wagner was not a party in the proceedings against the Binford entry, and he was not therefore bound by those proceedings. The cancellation of that entry was not the result of a proceeding brought by Kester, but the result of a voluntary relinquishment on her part. There was not, therefore, any adjudication in that matter as to Kester's rights. The entry of Maud Binford having been allowed, acts done upon the land pursuant to her authority or permission, while her entry was subsisting and intact, were lawful if such acts done by her would have been lawful. She having granted permission to Wagner to enter upon the land, and he having relied upon that authority, she could not by relinquishing her entry of the tract make the act of Wagner in going upon the land unlawful. (38 Cyc. 1002, 1050; Lewis v. Ry. Co., (Utah) 54 P. 981; Caldwell v. Bush, supra; State v. Ross, 4 Jones L. (N. C.) 315). The situation is analogous to that where acts are questioned which have been done in reliance upon a judgment appealed from and not stayed, but finally reversed and vacated. The rule is well settled that what is so done under the judgment is not affected by the subsequent vacation of it. (24 Cyc. 65; Parker v. Courtney, (Neb.) 44 N.W. 863; Taylor v. Boyd, 3 Ohio 353; 15 Cyc. 197; 24 Cyc. 467; Bacon v. Sheppard, 20 Am. Dec. 583; Mark v. Hyatt, (N. Y.) 31 N.E. 1099; Porter v. Small, (Ore.) 120 P. 393; Bridges v. McAllister, (Ky.) 51 S.W. 603; Thompson v. Reasoner, (Ind.) 24 N.E. 323). There is nothing in the evidence to justify punitive or exemplary damages. Not a single fact in the case shows bad faith or malice on the part of the defendant against the plaintiff. He had no reason to believe that he was invading any rights of the plaintiff in entering upon the land. He told the plaintiff that he was going to move his sheep upon the land, and instructed his herder to keep them away from the hay and potatoes. (Kieman v. Heaton, (Ia.) 28 N.W. 478; Lyles v. Perrin, (Cal.) 51 P. 332; Hollister v. Ruddy, (N. J.) 48 A. 520; Gerkins v. Ky. Salt Co. (Ky.) 67 S.W. 821; Ulander v. Orman, (Tex.) 26 S.W. 1103; R. R. Co. v. Boyd, (Md.) 10 A. 315; Gwynn v. Citizens Tel. Co., (S. C.) 48 S.E. 460; Louisville G. S. v. Knighton, (Ky.) 104 S.W. 332; Murray v. Pannaci, 65 C. C. A. 155; Carli v. Union &c. Co., (Minn.) 20 N.W. 89; Abbott v. Land & W. Co., (Cal.) 37 P. 527; Jones v. Marshall, (Ia.) 10 N.W. 264; Jopling v. Bluefield, &c. Co., (W. Va.) 14 S.E. 943; Scheer v. Kriesel, (Wis.) 85 N.W. 138).

It was error for the court to instruct to find for the plaintiff in any event. And recovery should have been limited by an instruction to the amount sued for. (Crews v. Lockland, 67 Mo. 619; Ft. Worth &c. v. Measles, 81 Tex. 474; Wright v. Jacobs, 61 Mo. 19; Ry. Co. v. Durett, 58 S.W. 187).

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

This is an action brought by the plaintiff in error against the defendant in error to recover damages for an alleged trespass upon certain lands to which plaintiff claimed the right of possession. The damages claimed consisted of the consuming of the pasture on the land and about one ton of hay, by defendant's sheep. The value of the pasture was alleged to be one hundred dollars, and the value of the hay ten dollars. It was further alleged in the petition that in the commission of the unlawful acts complained of the defendant acted vindictively and maliciously and in wanton disregard of plaintiff's rights, and he claimed nine hundred dollars additional punitive or exemplary damages. The case was tried to the court and a jury. The court charged the jury, "that the plaintiff was entitled to the possession of the land during all of the time complained about. The defendant admits that he went upon the land with his sheep. Therefore, your verdict must be in any event for the plaintiff, and it is your duty to find the actual damage sustained by him through said acts of trespass."

On the question of punitive or exemplary damages the court charged the jury as follows: "The plaintiff further claims that the damages sustained by him were committed wilfully by the defendant and in a wanton disregard of his rights in that respect. On this account he asks for punitive or exemplary damages. For the purpose of inquiring whether he is entitled to such damages you have a right to consider the fact, which is not disputed, that the defendant took his sheep upon the land with the permission of Maud Binford, who, apparently, though not really, had a right to the possession of the land, and you have a right to consider this fact in determining whether you shall allow exemplary damages to the plaintiff; and if you should find that the defendant acted in good faith, believing that he had a right under the terms of his lease from Maud Binford to enter upon this land, you will allow no further damages against the defendant than that which is sufficient to compensate the plaintiff for the actual loss suffered by him."

The jury found for plaintiff, and assessed his damages in the sum of $ 550.00, and judgment was entered for that amount and costs. In due time the defendant...

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