Ketchum v. Davis

• Decision Date: 07 February 1887
• Citation: 3 Wyo. 164,13 P. 15
• Parties: KETCHUM v. DAVIS
• Court: Wyoming Supreme Court

13 P. 15

3 Wyo. 164

KETCHUM v. DAVIS

Supreme Court of Wyoming

February 7, 1887

Error to district court, Laramie county.

Action by one Davis against one Ketchum to recover compensation under a verbal contract of agistment. From a judgment for plaintiff and an order denying his motion for a new trial defendant brings error. Affirmed.

Judgment affirmed.

C. N Potter, for plaintiff in error.

Willis Van Devanter, for defendant in error.

BLAIR J.

OPINION

BLAIR, J.

This case comes here upon a writ of error from the district court held in and for the county of Laramie. The facts are that the defendant in error here sued the plaintiff in error here in the court below on an alleged verbal agreement or understanding, under which Davis was to ranch certain cattle belonging to Ketchum, at the price of five dollars per head per annum. Ketchum appeared to the action, and in his amended answer filed a general denial to the first, second, and third causes of action in the plaintiff's petition contained; and for a second and further defense pleaded, in substance, by way of avoidance, that the cattle received by the plaintiff from the defendant, to ranch under said verbal agreement or understanding, were turned and put into a certain field and inclosure, which the plaintiff claimed, controlled, and used, and of which he claimed the possession, to be pastured and inclosed; that said field was surrounded by a good and substantial fence maintained by the plaintiff, and that the said plaintiff agreed to and with the defendant, for the consideration of five dollars per head per annum, to maintain said inclosure, and to allow defendant's cattle to pasture in said field and inclosure, and graze upon the lands embraced in said field; that said field or inclosure embraced and contained a large body of government or public lands belonging to the United States of America, and subject to disposal, settlement, and entry under the pre-emption, homestead, and other laws of the United States; that the lands thus inclosed, and which were a part of the public domain, largely exceeded in area and quantity 160 acres, were not claimed or held by said plaintiff under any of the land laws of the United States, and that the plaintiff had no right to the possession of the same, and that they were not settled upon or occupied or entered by any other person or persons under any of said laws; that the maintaining of said fence and the inclosing of said public lands, thereby separating them from the rest of the public domain, and appropriating them to the plaintiff's own use, was and is unlawful and illegal, constituting an unwarranted trespass upon said lands, and was and is a public nuisance; that the maintaining of said fence prevented the free disposal of the said lands under the various laws of the United States, preventing and retarding settlement upon and occupation of said land under said laws, deprived the public of their rights in and to said lands, and violated the policy of the government in regard to the use, settlement, and disposal of its public domain; that to carry out and comply with said contract the...