Peterson v. Petterson

• Decision Date: 12 July 1911
• Docket Number: 2189
• Citation: 39 Utah 354,117 P. 70
• Court: Utah Supreme Court
• Parties: PETERSON v. PETTERSON et al

117 P. 70

39 Utah 354

PETERSON v. PETTERSON et al

No. 2189

Supreme Court of Utah

July 12, 1911

APPEAL from District Court, First District; Hon. W. W. Maughan Judge.

Action by Nels R. Peterson against P. C. Petterson and another doing business as Petterson & Taylor.

Judgment for defendants. Plaintiff appeals.

REVERSED AND REMANDED WITH DIRECTIONS.

J. D Call for appellant.

Halverson & Pratt for respondents.

STRAUP J. FRICK, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

The appellant, plaintiff below, in his complaint alleged that he was the owner and in possession of certain described real estate, and that the defendants' cattle trespassed upon the land, and "ate up, injured, and destroyed the lucerne seed, hay, and verdure being upon and grazed upon said land," to plaintiff's damage in the sum of $ 400. Defendants filed a general denial.

The evidence shows that one Erastus Hanson owned the land and lived on it, and harvested lucerne seed from it. This seed was sold by Hanson to plaintiff. On account of rains, the seed being too damp to thresh, it was spread in ricks to dry, over about an acre of ground. The plaintiff there left the seed in the field, inclosed by a fence, for about two weeks. There is evidence to show that during the absence of the plaintiff the defendants' cattle in an adjoining field broke through the fence and entered the field where plaintiff's seed was, and ate part of it and trampled the rest, so that it was worthless, and that the value of the seed was from $ 400 to $ 600.

At the conclusion of plaintiff's evidence, the court granted a nonsuit on the alleged ground of insufficiency of evidence to show that the defendants' cattle committed the trespass or destroyed the seed, and especially upon the ground of insufficiency of evidence to show negligence on the part of the defendants in permitting the cattle to enter the premises in question, or to eat or injure the seed.

Because plaintiff did not own the land, and as is urged, had no interest in it, except a mere license to enter and remove the seed, it is contended that he could not maintain an action of trespass to realty; that he could not maintain an action of trespass to personal property, that being, as is asserted all in which he had any interest, without alleging and proving negligence; and as there are neither allegations nor proof of negligence the nonsuit, as is asserted by respondents, was properly granted. As already observed, there is sufficient evidence to show that defendants' cattle entered the field, and ate and injured the seed. It seems that the court granted the nonsuit on the theory of a want of allegations and proof of negligence. We think the law was misapplied. We have a statute (Comp. Laws 1907, section 20) which provides that if any cattle, etc., shall trespass or do damage...