Leitch v. Owyhee Sheep & Land Co.
| Decision Date | 20 November 1920 |
| Citation | 33 Idaho 292,193 P. 730 |
| Court | Idaho Supreme Court |
| Parties | WILLIAM R. LEITCH, Respondent, v. OWYHEE SHEEP & LAND COMPANY, a Corporation, Appellant |
STATUTORY CONSTRUCTION-TWO-MILE LIMIT LAW-GRAZING RIGHTS-PARTNERSHIP-OWNER OR POSSESSORY CLAIMANT-DAMAGES-EVIDENCE.
1. Under the provisions of C. S., secs. 1908 and 1909 partnership sheep have no lawful right to graze within two miles of the dwelling-house on the land or possessory claim of one of the partners; nor can the partner sustain any damages by reason of the fact that other sheep have grazed thereon. Such grazing invades no legal right of the partnership.
2. One of the purposes of the provisions of the statute above referred to is to protect the public range for the benefit of the livestock of the owner or possessory claimant within two miles of his dwelling-house.
3. Proof of loss in the weight of partnership lambs and loss in the wool clip of partnership sheep is not competent evidence to establish damages resulting from the trespass of other sheep on the homestead of one of the partners, nor from the destruction of pasturage thereon.
APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. William A. Babcock, Judge.
Action for damages for trespass under two-mile limit law and upon a homestead. Judgment for plaintiff reversed and remanded.
Judgment reversed, with instructions. Costs awarded to appellant.
W. P Guthrie, for Appellant.
Speculative and remote damages cannot be recovered under the two-mile limit law. (Roseborough v. Whittington, 15 Idaho 100, 96 P. 437; Risse v. Collins, 12 Idaho 689, 87 P. 1006; Cleveland etc. Ry. Co. v. Patton, 203 Ill 376, 67 N.E. 804; Anderson v. Taylor, 56 Cal. 131, 38 Am. Rep. 52.)
One partner cannot maintain an action to recover damages to firm property. (Mechem's Elements of Partnership, sec. 226; Gilmore on Partnership, p. 556.)
A loss to a business is not a loss directly to the plaintiff, but to the firm, and in order to recover for injury to plaintiff's interest in his business, his interest therein must be specially averred. (
Rights based on a violation of law will not be enforced, and if a transaction is illegal in contravention of a statute, it will not be upheld in any way, but the parties will be left in the situation in which they have voluntarily placed themselves. ( Libbey v. Pelham, 30 Idaho 614, 166 P. 575; 1 C. J. 957, sec. 54; 30 Cyc. 556.)
C. M. Booth, E. M. Wolfe and J. F. Martin, for Respondent.
"The fundamental and cardinal principle of the law of damages is that the injured party shall have compensation for the injury sustained." (8 R. C. L. 431.)
Lost profits are a proper element of damage when such loss is the direct and necessary result of the defendant's acts, where such profits can be shown with a reasonable degree of certainty. (8 R. C. L. 501.)
Respondent 's complaint contains two causes of action: The first, to recover the penalty provided by C. S., sec. 1909, for the unlawful grazing of sheep within two miles of his dwelling-house; the second, to recover for the grazing of sheep upon his homestead.
The cause was tried upon this complaint and appellant's amended answer, which put in issue all of the material allegations of the complaint, resulting in a verdict for respondent upon which judgment was entered. This appeal is from the judgment.
The facts, so far as material to the questions disposed of in this opinion, are as follows: It was alleged in the complaint that respondent was the owner of and had an interest in certain sheep, for the grazing and pasturing of which he depended upon the grasses grown upon his homestead and the adjoining unclaimed and unappropriated public land. The proof offered by respondent disclosed the fact that the sheep did not belong to him individually, but were the property of a partnership in which respondent had a joint interest with one Catleugh, his partner.
The...
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