Till v. Bennett, 12520

Decision Date18 July 1979
Docket NumberNo. 12520,12520
PartiesRobert TILL and Judith Till, Plaintiffs and Respondents, v. Robert BENNETT, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Wally Eklund of Johnson, Johnson & Eklund, Gregory, for plaintiffs and respondents.

Dudley R. Herman of Herman & Wernke, Gregory, for defendant and appellant.

MORGAN, Justice.

This is an appeal from a judgment of the Circuit Court for the Sixth Judicial Circuit, Mellette County, upon a jury verdict which awarded respondents $2,650 actual damages and $2,300 punitive damages as a result of appellant's cattle trespassing upon respondents' land. Appellant appeals the judgment contending that the court erred in striking his defense of contributory negligence and in allowing the issue of punitive damages to go before the jury. We affirm.

Prior to the spring of 1975, appellant had leased two adjacent tracts of land from the Bureau of Indian Affairs. These two tracts were used for pasture and were separated by a fence which was located approximately thirty feet north of the division line between the north and south tracts. In the spring of 1975, respondents began leasing the south tract from the Bureau of Indian Affairs, while appellant retained the north tract. Some time before the spring of 1977, respondents broke up the sod on the south tract and in the spring of 1977, they planted the field to cane, a sweet cattle feed. Respondents, however, in plowing and planting, did so right up to the fence line separating the two tracts, thereby converting the thirty-foot strip south of the fence line, which was part of appellant's leasehold, to their own use. As the summer progressed and the cane grew, there were numerous instances when appellant's cattle got into respondents' cane field. Testimony as to the frequency and duration of these problems varied from infrequent short incidents to nearly constant, week-long incidents. Similarly, testimony as to how the cattle got into the field and what effort appellant made to remedy the situation was conflicting and divergent. On August 15, 1977, respondents' attorney formally notified appellant of the injury and the probable amount of damages as required by SDCL 40-28-6 and, shortly thereafter, respondents served and filed a summons and complaint demanding damages as provided for in SDCL 40-28-4. 1 Appellant filed his answer and thereafter an amended complaint and amended answer were served and filed. Appellant, in his amended answer, pleaded the defense of contributory negligence on the part of the respondents in trespassing on appellant's thirty-foot strip of land and planting cane on that strip, thereby causing appellant's cattle to "get the taste" of the cane, which led to the damages alleged. Respondents moved that appellant's defense of contributory negligence be stricken, which motion was granted by the circuit court. The matter was tried before a jury and respondents were awarded damages as enumerated above.

Appellant first contends that the circuit court erred in striking the defense of contributory negligence from his amended answer.

The concept of strict liability for damage done by domestic livestock is deeply rooted in the common law and SDCL 40-28-4 is declarative of South Dakota's adoption of that principle. Houska v. Hrabe, 35 S.D. 269, 151 N.W. 1021 (1915). This court, in Hall v. Umiker, 87 S.D. 362, 209 N.W.2d 361 (1973), reiterated that principle and, in a case very similar to the one at bar, held that negligence on the part of the plaintiff is no defense to an action based upon SDCL 40-28-4. In that case, the defendant had pled the defense of contributory negligence and failure of the plaintiff to fence his land. We affirmed the action of the trial court in striking the defenses stating:

The defenses thus stricken by the court are predicated upon the contention that the plaintiff was under a legal obligation to fence or that plaintiff had conducted himself in a negligent manner. The allegations enumerated were properly stricken by the court as insufficient defenses in that the law holds the owner of cattle strictly liable for trespass on the lands of another even if the defendant be free from negligence. (Citations omitted.)

209 N.W.2d at 363.

We find Hall v. Umiker, supra, to be applicable and controlling in this case. The concept of strict liability and contributory negligence are at least somewhat conflicting and we are convinced that the holding in Hall is sound. See Smith v. Smith, 278 N.W.2d 155 (S.D.1979).

Appellant's second contention is that the court erred in allowing the issue of punitive damages to go before the jury. First, we must determine whether the matter was properly preserved and is properly before us on appeal, since we will not review a matter on appeal unless proper objection was made before the trial court. Stark v. Stark, 79 S.D. 178, 109 N.W.2d 904 (1961).

Appellant contends that the court...

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  • City of Sioux Falls v. Kelley
    • United States
    • South Dakota Supreme Court
    • March 31, 1994
    ...not properly raised below cannot be reviewed by this court on appeal. See Anderson v. Johnson, 441 N.W.2d 675 (S.D.1989); Till v. Bennett, 281 N.W.2d 276 (S.D.1979); see also State v. Carlson, 392 N.W.2d 89 (S.D.1986); Hepper v. Triple U Enterprises, Inc., 388 N.W.2d 525 (S.D.1986); Johnson......
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    ...interpreted to provide for strict liability for damage done by livestock for trespass and injury to another's property. Till v. Bennett, 281 N.W.2d 276, 278 (S.D.1979); Hall v. Umiker, 87 S.D. 362, 364-65, 209 N.W.2d 361, 362-363 ¶13 As a general proposition, punitive damages are not recove......
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