Swanson v. Groat

CourtUnited States State Supreme Court of Idaho
Writing for the CourtAILSHIE, J.
Citation12 Idaho 148,85 P. 384
Decision Date06 March 1906
PartiesTHEODORE SWANSON, Respondent, v. NIEL GROAT et al., Appellants

85 P. 384

12 Idaho 148

THEODORE SWANSON, Respondent,
v.

NIEL GROAT et al., Appellants

Supreme Court of Idaho

March 6, 1906


JUDGMENT-ROLL - DAMAGES FOR TRESPASS-TRESPASS ON UNINCLOSED LANDS-TWO-MILE LIMIT LAW.

1. On an appeal from a judgment where no bill of exceptions or statement has been settled, a motion made in the trial court to strike from the complaint certain matter therein contained is not properly a part of the judgment-roll under section 4456 of the Revised Statutes, and cannot become a part of the record on appeal under the provisions of section 4818 of the Revised Statutes.

2. ID.-Where matter has been improperly inserted in the transcript on appeal, the same will be stricken from the record on motion of the adverse party.

3. Under the laws of this state, livestock, with certain exceptions, may run at large and roam and graze over and upon any of the uninclosed lands of the state, and the same will not amount to an actionable trespass against the owner of such livestock.

4. One who willfully, deliberately and knowingly drives his livestock upon the lands of another, whether inclosed or uninclosed, [12 Idaho 149] and holds, herds and grazes them upon such lands over the protests and objections of the owner, is liable in damages for the trespass.

(Syllabus by the court.)

APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. Alfred Budge, Judge.

Action by plaintiff for the willful, deliberate and unlawful trespass in the herding and grazing their sheep upon the lands of the plaintiff, and within two miles of his dwelling-house. Judgment for plaintiff; defendants appeal. Affirmed.

Judgment affirmed, with costs in favor of respondent.

Holzheimer & Holzheimer, for Appellants, cite no authorities on points decided by the court.

Standrod & Terrell, for Respondent.

The law provides for no appeal from an order overruling a demurrer, or an order on motion affecting the pleadings. (Code Civ. Proc., sec. 3573; Ah Kle v. McLean, 3 Idaho 70, 26 P. 937.)

This being only an appeal from the judgment, the statutes fix what papers are to be used on the appeal. (Code Civ. Proc., sec. 3584.)

Section 3509, subsection 2, names the papers that constitute the judgment-roll in a case of this kind.

Motions and orders striking out or refusing to strike out any parts of the pleadings are no part of the judgment-roll. ( Graham v. Linehan, 1 Idaho 780; Sutter v. San Francisco, 36 Cal. 114; Sharp v. Daugney, 33 Cal. 513; Feeley v. Shirley, 43 Cal. 369; Morris v. Angle, 42 Cal. 240; Ganceart v. Henry, 98 Cal. 281, 33 P. 92, Barber v. Mulford, 117 Cal. 356, 49 P. 206; Wilson v. Wilson, 64 Cal. 92, 27 P. 861; Hawley v. Kocher, 123 Cal. 77, 55 P. 696.)

On appeal from a final judgment, if the record contains no bill of exceptions or statement, the case must be reviewed and decided upon the judgment-roll alone. (Graham v. Linehan, 1 Idaho 780; Gamble v. Dunwell, 1 Idaho 268; Ray v. Ray, 1 Idaho 705; Rich v. French, 3 Idaho 727, 35 P. 173; Stickney v. Hanrahan, 7 Idaho 424, 63 P. 189; Williams v. Boise Basin M. & D. Co., 11 Idaho 233, 81 P. 646; Taylor v. McCormick, 7 Idaho 524, 64 P. 239; Anderson v. Shoshone Co., 6 Idaho 78, 53 P. 105; Bank v. Sampson, 7 Idaho 564, 64 P. 890.)

The law is well settled that one who willfully, knowingly or purposely drives sheep upon the lands of another is liable in damages although the lands are uninclosed. (Walker v. Bloomingcamp, 34 Or. 391, 43 P. 175, 56 P. 809; Lazarus v. Phelps, 152 U.S. 81, 38 L.Ed. 363, 14 S.Ct. 477; Harrison v. Adamson, 76 Iowa 337, 41 N.W. 34; Delaney v. Erickson, 11 Neb. 533, 10 N.W. 451; Powers v. Kindt, 13 Kan. 74.)

The rule is well settled that error will not be presumed, but must affirmatively appear from the record. It does not appear from the...

To continue reading

Request your trial
11 practice notes
  • Fairview Inv. Co., Ltd. v. Lamberson
    • United States
    • Idaho Supreme Court
    • November 4, 1913
    ...have no place in the judgment-roll under the statute." (Williams v. Boise Basin & Dev. Co., 11 Idaho 233, 81 P. 646; Swanson v. Groat, 12 Idaho 148, 85 P. 384.) The doctrine of the Williams case was also approved in Crowley v. Croesus Gold & Copper Min. Co., 12 Idaho 530, 539, 86 P. 539, an......
  • State v. Horn
    • United States
    • United States State Supreme Court of Idaho
    • October 5, 1915
    ...extend over the public lands of the United States within the state. (Spencer v. Morgan, 10 Idaho 542, 79 P. 459; Swanson v. Groat, 12 Idaho 148, 85 P. 384; Risse v. Collins, 12 Idaho 689, 87 P. 1006.) As to sec. 6872 being class or special legislation, if all persons subject to it are treat......
  • Maguire v. Yanke, No. 12596
    • United States
    • Idaho Supreme Court
    • December 5, 1978
    ...of the owner, is liable in damages for the trespass. Lazarus v. Phelps, 152 U.S. 81, 14 S.Ct. 477, 38 L.Ed. 363 (1894); Swanson v. Groat, 12 Idaho 148, 85 P. 384 In an effort to provide a remedy for landowners whose property was damaged by roaming cattle, most western states including Idaho......
  • Perkins v. Loux
    • United States
    • United States State Supreme Court of Idaho
    • March 24, 1908
    ...Min. Co., 11 Idaho 233, 81 P. 646; Ramsey v. Hart, 1 Idaho 423; Ray v. Ray, 1 Idaho 705; Graham v. Linehan, 1 Idaho 780; Swanson v. Groat, 12 Idaho 148, 85 P. 384.) SULLIVAN, J. Ailshie, C. J., concurs. STEWART, J., Dissenting in part. OPINION [14 Idaho 609] SULLIVAN, J. This is an action c......
  • Request a trial to view additional results
10 cases
  • Fairview Inv. Co., Ltd. v. Lamberson
    • United States
    • Idaho Supreme Court
    • November 4, 1913
    ...have no place in the judgment-roll under the statute." (Williams v. Boise Basin & Dev. Co., 11 Idaho 233, 81 P. 646; Swanson v. Groat, 12 Idaho 148, 85 P. 384.) The doctrine of the Williams case was also approved in Crowley v. Croesus Gold & Copper Min. Co., 12 Idaho 530, 539, 86 P. 539, an......
  • State v. Horn
    • United States
    • United States State Supreme Court of Idaho
    • October 5, 1915
    ...extend over the public lands of the United States within the state. (Spencer v. Morgan, 10 Idaho 542, 79 P. 459; Swanson v. Groat, 12 Idaho 148, 85 P. 384; Risse v. Collins, 12 Idaho 689, 87 P. 1006.) As to sec. 6872 being class or special legislation, if all persons subject to it are treat......
  • Maguire v. Yanke, No. 12596
    • United States
    • Idaho Supreme Court
    • December 5, 1978
    ...of the owner, is liable in damages for the trespass. Lazarus v. Phelps, 152 U.S. 81, 14 S.Ct. 477, 38 L.Ed. 363 (1894); Swanson v. Groat, 12 Idaho 148, 85 P. 384 In an effort to provide a remedy for landowners whose property was damaged by roaming cattle, most western states including Idaho......
  • Perkins v. Loux
    • United States
    • United States State Supreme Court of Idaho
    • March 24, 1908
    ...Min. Co., 11 Idaho 233, 81 P. 646; Ramsey v. Hart, 1 Idaho 423; Ray v. Ray, 1 Idaho 705; Graham v. Linehan, 1 Idaho 780; Swanson v. Groat, 12 Idaho 148, 85 P. 384.) SULLIVAN, J. Ailshie, C. J., concurs. STEWART, J., Dissenting in part. OPINION [14 Idaho 609] SULLIVAN, J. This is an action c......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT