Schecter v. Morgan

• Decision Date: 03 February 1919
• Docket Number: 9290.
• Citation: 66 Colo. 35,178 P. 564
• Parties: SCHECTER v. MORGAN.
• Court: Colorado Supreme Court

178 P. 564

66 Colo. 35

SCHECTER v. MORGAN.

No. 9290.

Supreme Court of Colorado

February 3, 1919

Department 3.

Error to Conejos County Court; Jose A. Garcia, Judge.

Action by Anne M. Morgan against J. J. Schecter. Judgment for plaintiff, and defendant brings error. Reversed and remanded with directions.

Albert L. Moses, of Alamosa, for plaintiff in error.

James D. Pilcher, of Alamosa, for defendant in error.

ALLEN J.

This is an action for damages. The plaintiff was the owner of a field of peas which adjoined a like field in possession of the defendant. The defendant pastured a certain number of cattle upon his own field. The animals strayed and trespassed a few times upon the plaintiff's land, and it is to recover for the injury caused thereby that this action was brought. The plaintiff obtained a judgment, and the defendant brings error.

A line fence separated plaintiff's field from that of the defendant. It is conceded that this fence was not a legal and sufficient fence, within the description of a lawful fence given in section 2587, R. S. 1908. It is provided by section 2589, R. S. 1908, that----

'No person or persons shall be allowed to recover damages for any injury to any crops or grass or garden products, or other vegetable products, unless the same, at the time of such trespass or injury, was enclosed by a legal and sufficient fence.'

The plaintiff, however, seeks to bring the case within the rule announced in Bell v. Gonzales, 35 Colo. 140, 83 P. 640, 117 Am.St.Rep. 179, 9 Ann.Cas. 1094, where it is held that the statute does not apply in cases where cattle owners 'deliberately take possession' of the lands trespassed upon, and pasture their cattle upon the premises of others 'under such circumstances as to show a deliberate intent to obtain the benefit of another's pasturage.' The rule thus announced is not disputed by the defendant, but he contends that the judgment is contrary to the evidence. Upon examination of the record we find that this contention is well founded and should be upheld.

The defendant employed a herder to watch the cattle during the daytime. The testimony is to the effect that the cattle went over into the plaintiff's field 'night after night.' This fact, in itself, is not sufficient to fix a liability upon the defendant. Taken as a whole, the evidence is manifestly against the conclusion that the defendant willfully pastured his cattle upon plaintiff's land. There is no sufficient evidence showing that the defendant did anything which was tantamount to a willful driving of his cattle upon the premises of the plaintiff. Under these circumstances, the plaintiff is not entitled to recover. Richards v. Sanderson, 39 Colo. 270, 89 P. 769, 121 Am.St.Rep. 167.

The plaintiff cites section 2590, R. S. 1908, relating to the duty of adjoining land occupiers as to the maintaining of partition fences. Under the...