Risse v. Collins

• Decision Date: 28 November 1906
• Citation: 12 Idaho 689,87 P. 1006
• Parties: JOHN RISSE, et ux., Respondents, v. O. M. COLLINS, et al., Appellants
• Court: Idaho Supreme Court

87 P. 1006

12 Idaho 689

JOHN RISSE, et ux., Respondents, v. O. M. COLLINS, et al., Appellants

Supreme Court of Idaho

November 28, 1906

TRESPASS-TITLE TO LAND ON WHICH TRESPASS COMMITTED-DAMAGES TO GROWING CROP-MEASURE OF DAMAGES-METHODS OF ASCERTAINING DAMAGES.

1. An action may be maintained under section 1210 of the Revised Statutes for the trespass of sheep within two miles of plaintiff's dwelling-house, where the plaintiff is the absolute owner in fee simple of the lands upon which his dwelling-house is situated.

2. Under the provisions of section 20, article 5, of the state constitution, the district courts have concurrent original jurisdiction with justice courts in actions prosecuted under sections 1210 and 1211 of the Revised Statutes for the unlawful herding and grazing of sheep.

3. In actions prosecuted under sections 1210 and 1211 of the Revised Statutes, damages sustained by reason of the herding and grazing sheep upon the public unappropriated lands within two miles of plaintiff's dwelling-house are measured by an entirely different standard and made up of different elements, and rest on a different theory from damages sustained by reason of such livestock herding and grazing upon the plaintiff's own lands.

4. Where the action is for damages sustained by reason of the herding and grazing of sheep upon the plaintiff's lands and for the consequent injury and damage to his growing crops, the measure of damages is the value of the crops at the time of their destruction.

5. While the measure of damages for the destruction of growing grass is its value at the time and place it was destroyed such value must be arrived at by the jury from evidence of such facts and circumstances as will disclose the uses for which such crop would have been most profitable, the nearest period at which it would have been marketable, and whether or not any further labor, expense or service would have been necessary to bring it to the marketable condition and period.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action by plaintiff for damages caused by the trespass of sheep under the provisions of sections 1210 and 1211 of the Revised Statutes. Judgment for the plaintiffs. Defendants moved for a new trial, and thereupon appealed from the judgment and the order denying their motion. Reversed.

Reversed and remanded. Costs awarded in favor of the appellants.

Eugene O'Neill and Lloyd H. Eriesson, for Appellants.

The district court has no jurisdiction in the first instance of cause arising under sections 1210, 1211 of the Revised Statutes.

Inasmuch as the legislature designated the justice court as the one in which this new remedy was to be enforced. no other court has jurisdiction thereof. The naming of the court in such statute vests exclusive jurisdiction therein. (Reed v. Omnibus Co., 33 Cal. 212; Smith v. Omnibus R. Co., 36 Cal. 281; Territory v. Mix, 1 Ariz. 52, 25 P. 528; Territory v. Ortiz, 1 N. Mex. 5; Andover Turnpike Co. v Gould, 6 Mass. 44, 4 Am. Dec. 80; Willis v. Yale, 1 Met. 553; Aldridge v. Hawkins, 6 Blackf. (Ind.) 125; Clear Lake W. W. Co. v. Lake Co., 45 Cal. 90; 23 Am. & Eng. Ency. of Law, 395; Dollar Sav. Bank v. United States, 19 Wall. 227, 22 L.Ed. 80.)

There is no evidence of any willful or tortious act on defendants' part. The damages, then, must be such as next immediately follow and are produced by the act complained of, or if not this proximate, such as in the ordinary course of things would be likely to result therefrom. (Sutherland on Damages, p. 40; Field on Damages, sec. 10.)

Where grass is overflown the plaintiff would be entitled to recover the value of the grass submerged, but not the cost of bringing his cattle to other grazing land nor price of new pasture. (Sabine E. T. R. Co. v. Johnson, 65 Tex. 389.)

Remote and speculative damages are not recoverable in such an action as this. The profits are not directly connected with the act complained of in this case, and the court erred in its admission of evidence as to butter made and its instruction concerning it. (Dorwin v. Potter, 5 Denio, 306.)

The element of damages in this case under the evidence and in accordance with the evidence is confined absolutely to the plaintiff's own lands, and he is entitled to no damages such as are contemplated under the provisions of section 1210 of the Revised Statutes of Idaho.

Allowing the testimony as to the loss of milk, or the loss of butter or other loss of cows, profits from butter business or other stock was error on the part of the court, and misled the jury, they having no basis of fact under any statute authorizing the allowance of damage for any such loss.

The plaintiff, if entitled to recover, should have shown the character and value of the property destroyed, and from those facts the jury could fix the amount to be allowed. (Axtell v. Northern P. Ry. Co., 9 Idaho 392, 74 P. 1075.)

Evidence of damages may be objected to on the trial on the ground that the damages are not sufficiently pleaded, or are too remote or speculative. In such cases, if the allegations of damages are not sufficiently specific, the defendant may demur to the complaint, or may move to make the allegations of the complaint more specific, or may question the sufficiency of the petition of special damages, by motion to strike out, by objection to the evidence when offered, or by request for instructions. (5 Ency. of Pl. & Pr. 77; Packard v. Stack, 32 Vt. 11.)

Johnson & Stookey, for Respondents.

Section 20, article 5 of the state constitution provides that: "The district court shall have original jurisdiction in all cases, both at law and equity." If it is held that section 1211, Revised Statutes, gives exclusive jurisdiction to justice courts, then it is clearly repugnant to the above clause of the constitution, as it deprives the district court of jurisdiction in a class of cases, and there can be no doubt of the intention of the framers of the constitution to give the district court unlimited jurisdiction in both law and equity.

The adoption of a self-executing constitutional provision which conflicts with an existing statute operates as an implied repeal of such statute. (26 Am. & Eng. Ency. of Law, 2d ed., 723.)

The owners of land, as well as persons having possessory claims, have a right to bring actions in this class of cases. "The legislature evidently intended to protect settlers from the injury and annoyance of having sheep herded and grazed around their habitations, whether they possessed the same absolutely and had their title thereto or held only by mere naked possession." (Sifers v. Johnson, 7 Idaho 798, 97 Am. St. Rep. 271, 65 P. 709, 54 L. R. A. 785.)

No objection to the facts as pleaded in amended complaint in relation to special damages covering the dairy business, handling of beef cattle, the purchase of feed and the taking of certain stock to the Blue Mountains in the state of Oregon, etc., were taken in the lower court by appellants (defendants), either by demurrer or motion, and they have, therefore, waived any objection they might have had to the introduction of this class of testimony under said amended complaint. (Rev. Stats., sec. 4178; Carter v. Wann, 6 Idaho 556, 57 P. 314; Aulbach v. Dahler, 4 Idaho 654-659, 43 P. 322; Palmer v. Utah Ry. Co., 2 Idaho 315, 13 P. 425.)

AILSHIE, J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This action was commenced in the district court in and for Nez Perce county on September 9, 1904, and thereafter, and on December 1st, the plaintiffs filed an amended complaint praying judgment in the sum of $ 2,005.50 for damages sustained by reason of the defendants' herding and grazing their sheep upon the lands of plaintiffs, and within two miles of their dwelling-house, in violation of the provisions of section 1210, Revised Statutes. Defendants answered and the case went to trial, and resulted in a verdict and judgment in favor of the plaintiffs in the sum of $ 150. Defendants have appealed from the judgment and an order denying their motion for a new trial. They have assigned some seventy-two errors, but we shall not attempt to consider them singly as they are all reducible to a few leading propositions, the determination of which will dispose of all the assignments. It is first contended by appellants that since the plaintiffs were the owners of the lands and premises on which their dwelling-house was situated, that the case for that reason does not come within the purview of sections 1210 and 1211 of the Revised Statutes, and that those provisions only pretend to apply to possessory claims and dwellings situated thereon. This contention is not tenable, and has been disposed of adversely to appellants in Sifers v. Johnson, 7 Idaho 798, 97 Am. St. Rep. 271, 65 P. 709, 54 L. R. A. 785. The statute was there held to apply as well to a settler who had absolute title as to one who had a mere naked possession.

It is next contended by appellants that their demurrer on the ground of want of jurisdiction in the district court should have been sustained. Section 1211, which provides the remedy in these cases, contains this provision: "The owner or the agent of such owner of sheep violating the provisions of the last section, on complaint of the party or parties injured before any justice of the peace for the precinct where either of the interested parties may reside is liable," etc.

Appellants insist that these statutes created a new right and provided a new remedy for its enforcement, and that in such case the remedy must be strictly pursued and is exclusive of all other remedies, and that this is also true as to the forum provided in...