Montgomery v. Somers

• Decision Date: 25 June 1907
• Parties: MONTGOMERY v. SOMERS.
• Court: Oregon Supreme Court

90 P. 674

50 Or. 259

MONTGOMERY v. SOMERS.

Supreme Court of Oregon

June 25, 1907

Appeal from Circuit Court, Wallowa County; Robert Eakin, Judge.

Action by William Montgomery against E.P. Somers. Defendant appeals from a judgment for plaintiff. Affirmed.

On February 2, 1906, plaintiff and his lessor settled upon, and entered as homesteads, under the laws of the United States adjoining tracts of land lying in the eastern part of Wallowa county, in a deep and precipitous canyon on the Imnaho river. From the year 1896, and prior to plaintiff's entry and settlement, stockmen and the public generally had been traveling up and down this canyon driving herds of cattle horses, and sheep to and from the grazing territory, by which travel trails had been made along the borders of this river and across the small level places or river bottoms in the canyon. These settlers were engaged in raising stock, and by means of a few acres of tillable land were enabled to raise a few tons of hay to sustain their stock through a stress in winter. In May, 1906, plaintiff had fenced in and under cultivation and sown to grain for hay two or three of these flats or bottoms, including some land he had leased, in all about 11 acres, besides some land upon the hillside was inclosed to save the grass for winter pasturage. In fencing his land, plaintiff left a passageway, 16 to 20 feet wide along the bank of the stream for a way for the public. On the 20th of May, 1906, defendant's servants and employés were driving 2,000 head of his sheep along this canyon, and on coming to plaintiff's premises the sheep refused to go along the roadway left by plaintiff for passage, and some of them broke through into his inclosure, and those in charge of them drove all of the sheep through and across plaintiff's inclosures, destroying a portion at least of his crop, for which plaintiff brought this action in trespass, demanding damages to the amount of $150. The defendant answered, denying all of the complaint, excepting he admitted that he was the owner of the sheep which did the damage, and by an affirmative answer he claimed that, long prior to the plaintiff's settlement on the land, a legal highway had been located and established and existed at over, and across the inclosed premises where the sheep had been driven, and that plaintiff in fencing the land had unlawfully closed up the highway. The reply put at issue these affirmative allegations of the answer. During the course of the trial, the court permitted the plaintiff to testify, over defendant's objections, that the aggregate amount of damages to him, caused by defendant's alleged trespass, was at least $150, and that he could not possibly replace the amount of hay destroyed for less than that amount; and also permitted one George Houser likewise to testify, over defendant's objections, that plaintiff was damaged $200 or $300. This verdict was for plaintiff in the sum of $65, on which judgment was entered, from which defendant appeals, assigning as errors the admission of the testimony mentioned, besides objections to the court's instruction.

D.W. Sheahan, for appellant.

J.A. Burleigh, for respondent.

SLATER C. (after stating the facts).

It is unquestionably the settled law of this state that in actions of this character, while a witness may state the facts upon which the damage is predicated, he cannot give his opinion as to the amount of the damages resulting from a given act, because it is the exclusive provinces of the jury to ascertain from the facts given in evidence, the amount of damages, under the rules of law given to them by the court. Burton v. Severance, 22 Or. 91, 29 P. 200; Chan Sing v. Portland, 37 Or. 68, 60 P. 718; United States v. McCann, 40 Or. 13, 66 P. 274; Pacific Live Stock Co. v. Murray, 45 Or. 103, 76 P. 1079. For this reason the court erred in permitting, over defendant's objection, the plaintiff and witness Houser to give their opinion as to the amount of plaintiff's damages; but it does not necessarily follow that for that reason the judgment must be reversed. If it clearly appears from the record that the incompetent testimony admitted did not influence the verdict, it will not be cause for reversal. Heneky v. Smith, 10 Or. 349, 45 Am.Rep. 143; French v. Cresswell, 13 Or. 418, 11 P. 62; Strickland v. Goide, 31 Or. 373, 49 P. 982; 13 Cyc. 193. The record discloses that the plaintiff claimed damages to the amount of $150, and after having testified about the condition of the crop, and the amount destroyed, and the value, he was permitted to testify that his damages amounted to that much at least, while Houser testified that they were as much as $200 to $300; and he also gave testimony of the condition of the crop and the value of hay to a person in the position that plaintiff was, but the verdict was for only $65. The jury could not have found that plaintiff was entitled to only $65 if they had given any weight to the opinion evidence of either of these witnesses. There was no counterclaim or offset pleaded by which the jury could have reduced, to the amount of the verdict, the estimate of damages made by plaintiff or Houser when testifying. At the same time, there was other and competent testimony from which they may have, and no doubt did, frame their verdict. The case of French v. Cresswell, supra, in one respect is very similar to this action. Mr. Justice Thayer, at page 424 of 13 Or., page 64 of 11 Pac., says: "We have noticed the exceptions taken to the admission of testimony regarding the amount of damages sustained by the respondent in consequence of the sheep feeding upon the land, and agree with the appellant's counsel that many of the questions asked the witness upon that subject were informal; but the verdict was so small that we have concluded that the appellant could not have been materially injured on account of it. If the respondent was entitled to any verdict at all, she was certainly entitled to the amount recovered."

2. Error is also assigned to the effect that all the witnesses, including plaintiff, were permitted to testify as to what was the value of the hay crop as if the same had been raised, harvested, and ready for use in feeding season, while it was alleged and admitted that the crop was a growing crop, and that no allowance or deduction was made for the necessary expense and trouble of raising and harvesting the crop. To support this contention, it is asserted that no testimony whatever was offered to show how many tons of hay the crop would have made, if not injured, or what the cost of caring for and harvesting the same would have been. No testimony to that effect appears in the record, it is true; but the bill of exceptions, however, does not purport to contain all of the evidence, but only "a sufficient amount to explain the exceptions," and there is no statement therein to the effect that no such testimony as asserted was offered. Unless it affirmatively appears in the record to the contrary, it must be presumed, therefore, that there was testimony of that character introduced sufficient to support the verdict.

3. The defendant at the trial offered proof tending to show that for several years prior to the entry and settlement by plaintiff and his lessor of the lands alleged to have been trespassed upon, and while the same were vacant, unappropriated public lands of the United States, the portion thereof over which defendant's sheep passed had been used for a road or trail for the passage of all kinds of public travel, except wheeled vehicles. That it had been during all those years habitually and continuously used as a road over which passed persons on foot and on horseback, such as stockmen, ranchers, miners, prospectors, and in fact any and all persons who had occasion to travel in or through that vicinity, especially stock raisers and drovers in driving large bands of...