Roseborough v. Whittington

• Decision Date: 08 June 1908
• Citation: 96 P. 437,15 Idaho 100
• Parties: LOGAN ROSEBOROUGH, Respondent, v. WM. E. WHITTINGTON, Appellant
• Court: Idaho Supreme Court

96 P. 437

15 Idaho 100

LOGAN ROSEBOROUGH, Respondent, v. WM. E. WHITTINGTON, Appellant

Supreme Court of Idaho

June 8, 1908

TWO-MILE LIMIT LAW-DAMAGES FOR HERDING AND GRAZING SHEEP-INSTRUCTIONS-SUFFICIENCY OF THE EVIDENCE-VERDICT-SUBSTANTIAL EVIDENCE TO SUPPORT IT-COSTS ON APPEAL FROM JUSTICE'S COURT.

1. Where the court gives instructions substantially covering the evidence, it is not error to refuse to give requested instructions that cover substantially the same ground.

2. Under the provisions of secs. 1210 and 1211, Rev. Stat., in order to recover, the plaintiff must show that he has sustained actual damages and real loss. Speculative and remote damages cannot be recovered under the provisions of said sections.

3. Held, that the evidence shows that the plaintiff sustained actual damage and real loss to the full amount of the judgment, by reason of the defendant's having grazed and herded his sheep within two miles of plaintiff's dwelling.

4. Under the provisions of sec. 4824, Rev. Stat., as amended by Laws of 1907, page 484, where there is substantial evidence to support the verdict, the same will not be set aside on appeal.

5. It is not error to refuse an instruction which laid down as a rule of law that the owner of sheep could legally herd or graze his sheep on the public domain within two miles of his own residence, even though such herding and grazing was within two miles of another person's dwelling-house.

6. Sec 4904, Rev. Stat., which provides that no costs can be allowed in an action for the recovery of money or damages when the plaintiff recovers less than one hundred dollars, applies to actions originally brought in the district court and not to actions brought in the probate or justice's court and taken by appeal to a higher court.

(Syllabus by the court.)

APPEAL from the District Court of Sixth Judicial District for Fremont County. Hon. James M. Stevens, Judge.

Action to recover damages under what is known as the "two-mile limit law." Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to the respondent.

J. D Millsaps, for Appellant.

In an action of this kind the permanent injury to the range or the effect upon the grass for another season, by reason of herding and grazing sheep upon it, tramping out and destroying it, is not a proper element of damage. (Sweet v. Ballentine, 8 Idaho 431, 69 P. 995; Spencer v Morgan, 10 Idaho 542, 79 P. 459; Swanson v. Groat, 12 Idaho 148, 85 P. 384.)

No man has a property right in and to the grasses growing upon the public domain to the exclusion of all other persons, even though said grass may be growing within two miles of his dwelling, if the same is within two miles of the dwelling of another. (Sifers v. Johnson, 7 Idaho 798, 97 Am. St. Rep. 271, 65 P. 709, 54 L. R. A. 785; Sweet v. Ballentine, 8 Idaho 431, 69 P. 995; Walling v. Bown, 9 Idaho 740, 76 P. 318; Phipps v. Grover, 9 Idaho 415, 75 P. 64; Spencer v. Morgan, 10 Idaho 542, 79 P. 459.)

Even if the plaintiff had the seeking of other ranges for his stock, that is not an element of damage in such a case as the one at bar. (Risse v. Collins, 12 Idaho 689, 87 P. 1006.)

The court erred in rendering judgment against the defendant and in favor of the plaintiff for the costs of this action, for the reason that this is an action for the recovery of damages and the amount recovered is less than $ 100. (Chase v. Hagood, 3 Idaho 682, 34 P. 811; Swinehart v. Pocatello M. & P. Co., 8 Idaho 710, 70 P. 1054; Richards v. Scott, 7 Idaho 726, 65 P. 433; Lovel v. Joyce, 9 Idaho 386, 74 P. 1073.)

Soule & Soule, for Respondent.

Secs. 4901-4904, Rev. Stat., cited by appellant, refer to actions originally commenced in the district court, and have no reference to appeals from the justice court. (Lovel v. Joyce, 9 Idaho 386, 74 P. 1073; Loring v. Rockwood, 13 Kan. 178; Clifton v. Sparks, 29 Mo.App. 560, 11 Cyc. 244.)

The cost and expense and the time plaintiff spent in looking after and caring for his cattle and horses and in seeking other range for them, when such expenses have been caused by the defendant's sheep, as was done in this case, are proper elements of damage. (Sweet v. Ballentine, supra; Colby v. McDermont, 6 N.D. 495, 71 N.W. 772; Allstead v. Nicol, 123 Cal. 594, 56 P. 452; Wiseman v. Ziegler, 41 Neb. 886, 60 N.W. 320.)

Where there is a conflict in the evidence, the verdict of the jury will not be disturbed. (Spencer v. Morgan, 10 Idaho 542, 79 P. 459.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This action was commenced to recover damages alleged to have been sustained by reason of the appellant's herding and grazing his sheep within two miles of the dwelling-house of the respondent, under the provisions of secs. 1210 and 1211, known as the "two-mile limit law." The action was brought in justice's court, where a judgment was rendered in favor of the defendant. Thereupon the plaintiff appealed to the district court, where the cause was tried de novo before the court with a jury, and a verdict and judgment were rendered and entered in favor of the plaintiff for the sum of $ 80 and costs of the suit. The appeal is from the judgment.

It is first contended that the court erred in permitting the witness to answer over the objection of the defendant, the following question: "What is the effect on the grass for another season on account of the tramping out of the grass?" It was error to permit the witness to answer that question. However, the witness simply stated that it would injure it for the following year, but no proof was introduced tending to show any amount of damages for the year 1908. The instructions of the court confined all damages recoverable in this action to the period between June 6th and June 25th of the year 1907, and as the legal evidence shows that the damage for that period amounted to fully as much as the judgment entered, permitting the witness to answer said question was error without prejudice.

It is next contended that it was error to permit a witness to answer, over the objection of the defendant, the following question: "What would you estimate the damage to Mr. Rose-borough by reason of this range being destroyed as it was destroyed?" It was not error to permit the witness to answer that question, as the evidence tends to show that the range was destroyed by the herding and grazing of sheep thereon for the year 1907, and the plaintiff's damages were confined to that year.

The action of the court in permitting the witness to answer the following questions is assigned as error: Q. "Since that time have you seen those cattle or horses on that range which was grazed over by those sheep?" And, Q. "Do you know why they did not and would not?" It was not error to permit the witness to answer those questions, as it was competent for the plaintiff to show that his cattle and horses would not graze on said range after it had been grazed over by the sheep.

A witness was called on behalf of the defendant and testified that he owned sheep and had a ranch near the ranch of the plaintiff, and on cross-examination he testified that at one time he saw his own sheep northeast of the plaintiff's ranch, and the next time, southeast of it, and the next time, east of it. As the damage alleged to have been committed by the defendant's sheep was north and southwest of plaintiff's ranch, the evidence referred to was irrelevant and immaterial and in no manner affects the damages caused by the defendant's sheep, and for that reason could in no wise prejudice the defendant.

The court correctly instructed the jury in regard to the preponderance of the evidence, and while instruction No. 3 upon that subject, requested by the defendant, was substantially correct, yet we think it fairly covered by the instruction given upon that question.

Instruction No. 5, as requested by counsel for the defendant, was given except the following words...