O’Neal v. Diamond A Cattle Co., 7713
| Decision Date | 09 May 1935 |
| Docket Number | 7713 |
| Citation | 63 S.D. 481,260 N.W. 836 |
| Parties | LEO O’NEAL, Respondent, v. DIAMOND A CATTLE COMPANY, Appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Stanley County, SD
#7713—Reversed
Martens & Goldsmith, Pierre, SD
Attorneys for Appellant.
F. W. Lambert, Fort Pierre, SD
Attorney for Respondent.
Plaintiff instituted this action in the circuit court of Stanley county alleging in substance that he was the owner and lawfully in possession of certain real estate (describing the same by governmental subdivisions) in Armstrong county, S.D. (an unorganized county attached to Stanley county for judicial purposes), and that on October 27, 1932, he had certain hay cut and stacked on said land (being 40 tons of the value of $4 per ton) and there was growing upon said land certain grass and winter feed; that on said day defendant negligently and unlawfully permitted its cattle to trespass upon said land and to trample down, eat, and destroy the stacked hay (to plaintiff’s damage $160) and to eat, injure, and destroy the growing grass and winter feed on said land (to plaintiff’s damage $50). Upon these allegations, plaintiff asked damages in the sum of $210. Issue being joined, the case came on for trial before the court with jury and resulted in a general verdict in favor of plaintiff and against the defendant assessing plaintiff’s damage in the sum of $115. From this judgment and from the denial of its application for new trial defendant has appealed.
During the course of the trial, the following facts were developed without contradiction: The premises upon which respondent claims appellant’s cattle trespassed are within the unorganized county of Armstrong, but they are also entirely within the exterior boundary of the Cheyenne River Indian Reservation created out of the former Great Reservation of the Sioux Nation by the Act of Congress March 2, 1889 (chapter 405, 25 Stat. p. 888). Appellant was grazing a number of head of cattle on this portion of the Cheyenne River Reservation by virtue of a permit executed by the authority of the Secretary of the Interior of the United States, which permit obligated the permittee to exercise due precaution to prevent injury to the fenced premises or livestock of any Indians on the reservation and reimburse the Indians for any loss of any kind that might occur to their fenced premises or their livestock, and which further provided that any unfenced allotted land within the pasture tract might, at any time, be excluded for the use of an allottee or those claiming through him by fencing with a legal fence.
Respondent is a white man married to an Indian woman and is occupying and claiming right to possession of a tract of land within the reservation bounded upon the south side by the Missouri River and upon the other three sides by a fence so constructed as to constitute a legal partition fence under the laws of this state (section 10533, Rev. Code 1919). It is for the breaking of this fence and trespass of appellant’s cattle on this tract, destroying stacked hay and growing grass and winter feed, that respondent instituted this action for damages. The fenced tract includes within the single fence some seven or eight hundred acres of land embracing various parcels concerning which the evidence shows the following facts: The fence includes what is known as the “Charles Claymore place,” which is a tract of about 111 acres owned by respondent’s Indian wife under fee patent and occupied by respondent with her knowledge and by her consent and permission. The fence includes also what is known as the “Sylvester Garreau allotment.” This is a trust patent allotment made to an Indian, Garreau, now deceased, which respondent claims to occupy by virtue of a verbal lease from one of the heirs of Sylvester Garreau, who in turn claimed...
To continue reading
Request your trial