Pyramid Land & Stock Co. v. Pierce

• Decision Date: 23 April 1908
• Docket Number: 1,715.
• Citation: 95 P. 210,30 Nev. 237
• Parties: PYRAMID LAND & STOCK CO. v. PIERCE et al.
• Court: Nevada Supreme Court

95 P. 210

30 Nev. 237

PYRAMID LAND & STOCK CO. v. PIERCE et al.

No. 1,715.

Supreme Court of Nevada

April 23, 1908

Appeal from Second Judicial District Court, Washoe County.

Action by the Pyramid Land & Stock Company, a corporation, against George Pierce and another. From a judgment for plaintiff defendants appeal. Modified and affirmed.

Jas. T Boyd and A. N. Salisbury, for appellants.

Cheney Massey and Price, for respondent.

TALBOT C.J.

In the complaint it is alleged that plaintiff is the owner of certain subdivisions of land aggregating 440 acres and consisting in part of what is commonly known as the Cottonwood Ranch in Washoe county, and also the owner of 80 acres at another place; that on or about the 24th day of February, 1906, and thereafter to the time of the making of the complaint, which was verified on March 7, 1906), the defendants wrongfully and unlawfully caused to be herded and grazed about 5,000 head of sheep upon this land without the consent of the plaintiff, by reason whereof the grasses herbage, and browse growing thereon were eaten up and destroyed and tramped out so as to render the land valueless for grazing purposes during the year 1906 and to the plaintiff's damage in the sum of $1,000. These and other allegations of the complaint were denied. After the trial, which commenced on the 28th day of May, 1906, judgment was rendered in favor of the plaintiff for $600 damages and for an attorney's fee and costs, and declaring these amounts to be a lien upon the live stock or sheep described in the complaint. From the judgment and an order denying a motion for new trial the defendants have appealed. On their behalf it is claimed that the damages are excessive; that the court improperly made the amount of the judgment a lien upon the sheep when the complaint did not allege or ask for anything by way of lien; that an attorney's fee was improperly allowed; that the act of 1893 (Laws 1893, p. 30, c. 31), providing for such a fee in cases where the plaintiff recovers damages for live stock herded or grazed upon his lands and for a lien on the live stock in such actions, has been superseded and repealed by the act of 1903 (Laws 1903, p. 47, c. 28), regarding the herding of sheep, which does not provide for any such fee or lien, and that the provision directing the recovery of a fee in the former act is unconstitutional and void.

The contention of the appellant that the damages are excessive seems to be well taken. For the plaintiff there was testimony to the effect that one acre of the land would have supported one cow or steer for the month of March if the feed had not been destroyed by the sheep, and that the price of pasturing cattle on inclosed lands was $1.50 a head per month. If this be granted, still the evidence does not warrant so large an amount of damages as was allowed. It is clear from uncontradicted testimony that a large portion of the 440 acres designated as constituting in part the Cottonwood ranch was fenced, and that the sheep did not go upon any of the land within the inclosure nor to the south of it, but only upon outside lands below, or northerly or northwesterly from the fields. The number of acres of this outside and lower land upon which the sheep trespassed is not definitely shown, nor is it required or expected so to be, but the inference from the evidence is that they crossed and grazed upon the greater part of eight 40's. They were also upon one 40 of the separate 80 acres.

The testimony indicates that the two bands of sheep of about 2,000 each belonging to the defendants crossed the lands below the ranch belonging to the plaintiff about the 23d of February, camped there overnight, one band passing on three or four miles the next day, and that the other band camped for about a week from a quarter to a half mile north of the fence, and then moved on and camped for another week about a mile and a half south of the house, although this is not shown to have been upon the lands of the plaintiff, but apparently they grazed upon the plaintiff's lands and the public domain adjacent during that period; that the grass was starting, and that it was storming during that time; that the feed consisting of bunch and buffalo grass, weeds and sage brush would not be destroyed so it would not appear again by being fed over by the sheep, and that it would grow again if there were storms and moisture. A witness stated that the band which remained was delayed by the storm. It was also shown by witnesses who had been placed upon the stand by the plaintiff that the plaintiff's cattle had grazed upon these lands in March, and that the plaintiff's sheep had lambed and fed there in April, and by one of plaintiff's leading witnesses it was stated that the storms continued late that spring, that the feed had not dried up, and was as good as usual at the time of the trial-90 days after the trespass. Under these circumstances and especially considering that the defendants' sheep were upon the lands at so early in the year, even for grass, the allegation in the complaint that the feed was destroyed for that year, or even for the whole month of March as contended, is not supported by the evidence. Plaintiff introduced testimony on the trial claiming it had sustained special damages by reason of being without hay for its cattle and having extra need for any feed on these lands, but there is no allegation in the complaint to support any such special damage.

Section 1 of the act of February 18, 1893 (Laws 1893, p. 30, c. 31; Comp. Laws, §§ 780 to 783, inclusive), which is claimed by appellants to have been superseded and repealed and to be unconstitutional in certain respects, provides that it shall be unlawful for any person to herd or graze live stock upon the lands of another without the consent of the owner.

Section 2 provides: "The live stock which is herded or grazed upon the lands of another, contrary to the provisions, of the first section of this act, shall be liable for all damages done by said live stock while being unlawfully herded or grazed on the lands of another, as aforesaid, together with costs of suit and reasonable counsel fees, to be fixed by the court trying an action therefor, and said live stock may be seized and held by writ of attachment issued in the same manner provided by the general laws of the state of Nevada, as security for the payment of any judgment which may be recovered by the owner or owners of said lands for damages incurred by reason of a violation of any of the provisions of this act, and the claim and lien of a judgment or attachment in such an action shall be superior to any claim or demand which arose subsequent to the commencement of said action."

Section 4 provides: "An act entitled 'An act to prevent trespass upon real estate by live stock, and other matters relating thereto,' approved March 15, 1889, is hereby repealed."

Section 1 of the later act (Laws 1903, p. 47, c. 28) provides: "It is not lawful for any person owning or having charge of sheep, to herd the same, or permit them to be herded, on the land or possessory claims of other persons, or to herd the same or permit them to graze within one mile of the bona fide home or bona fide ranch house; provided, that nothing in this act shall be so construed as to prevent sheep being driven along any public highway, or as near thereto, as may be necessary therefor; provided, further, that the word highway as used herein shall be so construed as to permit the driving of sheep herded closely together, steadily, quickly and continuously by the most direct passable route from one range to another, but in no case shall this last provision be construed so as to conflict with the former provisions of this section; provided, that nothing in this act shall prevent the owner from herding or grazing on his own land."

Section 2 makes the owner or agent of the owner of the sheep violating its provisions liable to the parties injured for damages. The act of 1903 contains no repealing clause and no reference to the former act, and makes no provision for an attorney's fee or lien. Under these circumstances it cannot be held to repeal the former. Repeals by implication are not favored, and there is nothing to suggest that any repeal was intended. The act of 1903 covers new and additional matter by making it unlawful to herd or permit sheep to graze within one mile of a bona fide home or ranchhouse regardless of the ownership of the land, while the former act makes it unlawful to herd or graze live stock upon the lands of other persons, and provides for damages, attorney's fees, and a lien against parties infringing its provisions whether within one mile of a home or ranchhouse, or more distant.

The complaint and the evidence bring this action within the act of 1893 aimed against herding live stock upon the lands of another, and it does not appear that the plaintiff sought by its allegation or proof to bring the case within the statute of 1903. We conclude that the act of 1893, including its provisions in relation to damages, attorney's fees and liens, has not been repealed. If the plaintiff could not proceed under that act it and other owners could not recover damages caused by the herding of sheep on lands more than one mile from a home or ranchhouse as they would be limited to this distance by the act of 1903. The act of 1893 being in force, and the complaint asking for general relief and defendant being in court, the amount of the judgment was properly found to be a lien on the sheep.

Objection was made in the trial court and embodied in the specifications of error that there is no authority in law to award attorney's fees in this case. It was claimed there that the provision for such a fee had been repealed, and...