Kingsbury v. Bacon

• Decision Date: 10 March 1924
• Citation: 224 P. 438,38 Idaho 701
• Parties: DANIEL KINGSBURY, Respondent, v. T. C. BACON, Appellant
• Court: Idaho Supreme Court

224 P. 438

38 Idaho 701

DANIEL KINGSBURY, Respondent, v. T. C. BACON, Appellant

Supreme Court of Idaho

March 10, 1924

DAMAGES-GROWING CROPS-DESTRUCTION OF-TRESPASS-MEASURE OF DAMAGES-VALUE OF CROP AT TIME OF DESTRUCTION-HOW DETERMINED-EVIDENCE.

1. The measure of damages for the destruction of a growing crop is the value of the crop at the time it was destroyed.

2. The value of a growing crop of wheat at the time of its destruction must be determined from evidence of the probable yield and the market value of the crop at maturity, less the probable cost of placing the growing crop in a marketable condition.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. H. F. Ensign, Judge.

Action for damages for destruction of growing crops. Judgment for plaintiff. Reversed.

Judgment reversed. Costs to appellant.

J. G Hedrick and Frank T. Wyman, for Appellant.

Ownership of sheep, as in this case, cannot be proved by what a herder says, and the admission of such testimony was clearly erroneous. (Cox v. Crane Creek Sheep Co., 34 Idaho 327, 200 P. 678.)

The measure of damages would be the value of the crop at the time it was destroyed, and there was no competent evidence introduced by the plaintiff to show its value at that time and no evidence upon which a jury could arrive at a just verdict. (Risse v. Collins, 12 Idaho 689, 87 P 1006; Kirk v. Madereita, 32 Idaho 406, 184 P. 225; Hall v. Brown, 102 Ore. 389, 202 P. 719; also notations to the cases reported in 27 L. R. A., N. S., 168; 37 L. R. A., N. S., 976.)

Leo M. Bresnahan, for Respondent.

There is sufficient competent evidence to prove the value of the crops destroyed and the amount of damages was entirely a question of fact to be determined by the jury. (Kendall v. McIntire Inc. Co., 59 Utah 228, 203 P. 653; Naylor v. Floor, 51 Utah 382, 170 P. 971; Kirk v. Madereita, 32 Idaho 406, 184 P. 225; Sutherland on Damages, 4th ed., sec. 445.)

WM. E. LEE, J. McCarthy, C. J., and William A. Lee, J., concur.

OPINION

WM. E. LEE, J.

--This is an appeal from a judgment of the district court of Blaine county. Respondent's action was based upon the alleged destruction of 11 acres of growing wheat and 129 acres of grass, in the summer of 1917, by sheep alleged to belong to appellant. The cause was tried, and the jury returned a verdict of $ 300 for respondent. From the judgment entered thereon, this appeal is prosecuted.

Appellant's specifications of error may be considered under two heads: first, that there is no competent evidence to prove that he was the owner of the trespassing sheep; and, second, that there is no competent evidence to establish the value of the wheat alleged to have been destroyed.

As to the sufficiency of the evidence establishing the ownership of the sheep, we are of the opinion that it is sufficient. It is true that the court committed error in permitting respondent and his son to testify to conversations they had with a herder in charge of the sheep. (Hanson v. Seawell, 35 Idaho 92, 204 P. 660; Cox v. Crane Creek Sheep Co., 34 Idaho 327, 200 P. 678; Surbaugh v. Butterfield, 44 Utah 446, 140 P. 757.) However, appellant testified that he had the Croesus mining claims leased for grazing purposes, that his camp was on the Croesus property, and that his sheep ranged on the Croesus mining claims. These claims adjoined and were immediately south of respondent's land, and the sheep that destroyed the wheat and grass on respondent's land, on being driven off, became commingled with certain sheep belonging to respondent and one Gwinn. The sheep were driven by the herder in charge and others to appellant's sheep camp upon the Croesus mining claims where they were separated, and the sheep that destroyed the wheat and grass on respondent's land were taken possession of by a herder and retained at the sheep camp which, appellant testified, belonged to him. While the evidence relating to the ownership of the sheep is not as strong as it might be, we are of the opinion that there was sufficient competent evidence to justify the jury in concluding that the sheep belonged to appellant.

The principal item of damage related to the destruction of 11 acres of fall wheat, which was destroyed at the time it was commencing to head. The rule is generally stated that the measure of damages is the value of the growing crop at the time of its destruction. (Hanson v. Seawell, 35 Idaho 92, 204 P. 660; Risse v. Collins, 12 Idaho 689, 87 P. 1006.) The mere statement of the foregoing rule however, is of little benefit unless it is accompanied by a definite standard by which to estimate the value of the crop destroyed. At the time it was destroyed, the crop had not matured, and probably had no actual market value. But it did, nevertheless, have a potential market value. The courts are not in entire agreement as to the proper method of arriving at such value. It stands to reason, however, that compensation for the injury is the end to be...