Smith v. Highland Live Stock & Land Co., Ltd.

Citation200 P. 679,34 Idaho 321
PartiesSTEPHEN M. SMITH, Respondent, v. HIGHLAND LIVESTOCK AND LAND COMPANY, LTD., a Corporation, Appellant
Decision Date03 September 1921
CourtUnited States State Supreme Court of Idaho

TRESPASS-APPORTIONMENT OF DAMAGES-INSUFFICIENCY OF EVIDENCE TO SUSTAIN VERDICT.

In an action for trespass brought by the owner of grazing lands against the owner of a band of sheep that were trailed across such lands on the same day and immediately following another band, where there is no evidence tending to show the amount of damage committed by the trespass of either band and no facts are shown from which a jury may apportion the damages the judgment will be reversed for want of sufficient evidence to sustain the same.

APPEAL from the District Court of the Third Judicial District, for Boise County. Hon. Chas. P. McCarthy, Judge.

Action for damages for trespass of sheep owned by defendant. From judgment for plaintiff, defendant appeals. Reversed and remanded, and a new trial ordered.

Reversed and remanded, with directions. Costs awarded to appellant.

Frawley & Koelsch and D. L. Rhodes, for Appellant.

In order to entitle the plaintiff to recover he should be required to prove at least approximately the amount of damages done by defendant's sheep. (Dooley v. 17,500 Head of Sheep, 4 Cal. Unrep. 479, 35 P. 1011; Partenheimer v Van Order, 20 Barb. (N. Y.) 479; Pacific Livestock v. Murray, 45 Ore. 103, 76 P. 1079; Powers v Kindt, 13 Kan. 74; 2 Waterman on Trespass, sec. 871; 3 C. J. 145.)

It was incumbent on the plaintiff to show that at the time defendant's sheep trespassed on the lands, there was grass and pasturage thereon, the value thereof and the value after the trespass. (Risse v. Collins, 12 Idaho 689, 87 P. 1006.)

Clinton H. Hartson, for Respondent.

In determining the proportion of damages recoverable against each of several owners of animals doing a trespass at the same time, regard is to be had to the number of animals belonging to each, and their size, strength and capacity for mischief. 1 R. C. L. 1106; Buddington v. Shearer, 20 Pick. (Mass.) 477; Powers v. Kindt, 13 Kan. 74.)

In the absence of proof authorizing a contrary conclusion, each animal will be presumed to have done the same amount of injury. (1 R. C. L. 1106; Partenheimer v. Van Order, 20 Barb. (N. Y.) 479; Buddington v. Shearer, supra.)

Where there is sufficient evidence to go to the jury, and there is a substantial conflict in that evidence, the verdict of the jury will not be set aside. (McAlinden v. St. Maries Hospital Assn., 28 Idaho 657, Ann. Cas. 1918A, 380, 156 P. 115.)

LEE, J. Rice, C. J., and Dunn, J., concur. Budge, J., did not sit at the hearing or take part in the opinion. McCarthy, J., took no part in the decision of this case.

OPINION

LEE, J.

This is an action for damages brought by respondent for an alleged trespass by appellant's sheep, committed on May 9, 1918. The complaint states two causes of action, the first for damages for trespass on lands owned and leased by respondent, and the second for damages alleged to have been committed by appellant's sheep upon lands owned by respondent's son, this cause of action having been assigned to respondent.

The cause was tried to the court sitting with a jury, which rendered a verdict in the sum of $ 300 upon the first cause of action and $ 50 in the second cause of action, and judgment was entered thereon. Appellant moved for a new trial, which was denied; this appeal is from the judgment, and also from the order denying appellant's motion for a new trial.

Appellant makes numerous assignments of error, all of which may be considered under the general assignment that the evidence is insufficient to support the verdict.

It appears that the respondent is the owner and entitled to the possession of certain grazing land, situate in Boise county, and is also in possession of certain other adjoining leased lands, amounting to 440 acres in all; and that his son, Andrew P. Smith, is the owner and entitled to the possession of grazing lands adjoining respondent's aggregating 320 acres, upon which the trespass stated in the second cause of action was alleged to have been committed.

On the day in question, appellant's herders trailed a band of sheep across these lands or certain portions of them. The testimony is indefinite and uncertain as to the number of sheep so trailed, and as to the time they were on the premises, but as nearly as can be determined from the record there were approximately 1,800 head, and they were from one to two hours crossing these lands, or such portion thereof as they did trespass upon. Respondent's witnesses testified that these sheep trespassed upon not to exceed six forties of this land. Appellant's sheep camped at about the noon hour near a point termed the "little lake," just to the west of respondent's land, and moved thence northeasterly through a gulch, crossing Dagget Creek, running in a northwesterly and southeasterly direction, and certain irrigation ditches claimed to have been injured, running parallel with and near to this creek for a distance of approximately half a mile. It further appears that the band of sheep was following another band, traveling in about the same direction, belonging to one T. R. Wilson. There is no evidence in the record from which the number of Wilson's sheep can be determined, but it is reasonably certain that appellant's sheep traversed respondent's land over practically the same route that the preceding band had taken. While both trespasses were committed on the same day, it is not possible from the evidence to determine even approximately the extent of the injuries caused by either band, or to segregate the amount of damage committed by appellant's sheep from the damage committed by the band which passed over these lands earlier in the day.

In Powers v. Kindt, 13 Kan. 74, it is held that where growing crops are destroyed by trespassing animals belonging to two parties, trespassing repeatedly through the season and where in the nature of things it is impossible to distinguish...

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