Tracy v. Juanto

• Decision Date: 04 April 1922
• Citation: 103 Or. 416,205 P. 822
• Parties: TRACY v. JUANTO.
• Court: Oregon Supreme Court

205 P. 822

103 Or. 416

TRACY v. JUANTO.

Supreme Court of Oregon

April 4, 1922

In Banc.

Appeal from Circuit Court, Lake County; J. M. Batchelder, Judge.

Action by D. O. Tracy against Simon Juanto, to recover damages for trespassing. Judgment for the plaintiff, and defendant appeals. Affirmed.

Herbert P. Welch, of Lakeview, for appellant.

Hay &amp Gibbs, of Lakeview, for respondent.

RAND J.

This is an action to recover damages for an alleged trespass by defendant's sheep upon lands to which the plaintiff holds a possessory title. The answer denied that the trespass was committed by defendant's sheep. From a judgment in favor of the plaintiff, the defendant has appealed. There are several assignments of error in the record, but only one of these is mentioned or discussed in appellant's brief.

Where no argument is presented in appellant's brief upon an assignment of error, it is deemed to have been abandoned and waived. See Miller Lumber Co. v. Davis, 94 Or. 507 515, 185 P. 462, 1107; Donohoe v. Portland Ry. Co., 56 Or. 58, 61, 107 P. 964; Cody v. Black, 97 Or 343, 345, 191 P. 319, 192 P. 282. This is always subject to the right reserved by the court in furtherance of justice to notice on its own initiative a plain error of law apparent on the face of the record as prescribed by rule 12 of this court (173 P. x).

In addition to other evidence which was offered by the plaintiff to establish the ownership of the sheep, the plaintiff, over the objection of the defendant, was permitted to testify to a declaration, made in the absence of the defendant by the herder of the sheep while the same were in his possession and under his control and upon lands claimed by the plaintiff, that the defendant was the owner of the sheep. The admissibility of this testimony is the only question necessary for decision, as it is the only one discussed in appellant's brief. That declarations of this nature are admissible and competent as evidence tending to show ownership has been twice decided by this court in similar cases, and therefore this is no longer an open question in this state. Jones Land & Livestock Co. v. Seawell, 90 Or. 239, 176 P. 186, and Keller v. Johnson, 99 Or. 113, 194 P. 185.

In this behalf, appellant contends: (1) That the acts and declarations of one in possession of personal property are admissible only to explain his possession and not to prove ownership in another; (2) that a servant is not in personal possession of property, but his possession is the possession of his master, and (3) that agency cannot be proven by the declarations of the agent.

The declarations of one in possession of personal property concerning the title or explaining the character of his possession are admissible in evidence as part of the res gestæ, where the nature of his possession is a subject-matter of inquiry. This rule is supported by a great weight of authority. See Noblitt v. Durbin, 41 Or. 555, 69 P. 685; Bartel v. Lope, 6 Or. 321, 327; 1 Greenl. Ev. (16th Ed.) § 34; 3 Wig. Ev. § 1779; Jones Com's on Ev. 351; Haynes v. Leppig, 40 Mich. 602; Bradley v. Spofford, 23 N.H. 444, 55 Am. Dec. 205; Rex. v. Eldershaw, 14 Eng. Com. Law Rep. 628.

"Where the nature of one's possession is a subject-matter of inquiry, his declarations concerning the title or explaining the character of his possession are admissible in evidence as part of the res gestæ." Noblitt v. Durbin, supra.

In Bradley v. Spofford, supra, the court said:

"Such declarations of the persons in possession, are not only competent to rebut a title set up by, or under the party who made them, but are affirmative evidence of the title in the party for whom the person in possession declares that he holds it."

The latter case was cited in Jones Land & Livestock Co. v. Seawell, supra, where this court, through the late Mr. Justice Benson quoted the above with approval.

Such declarations, to be admissible, must accompany the possession and must be made where the nature of the possession is the subject of inquiry, and must concern the title or explain the character of the possession. They must not go beyond this. If they show the source or manner of acquiring the title or the details of the agreement under which the possession is held, or are a mere narrative of a past event, they are incompetent and inadmissible. As said by Mr. Justice Bean in Noblitt v. Durbin, supra:

"To be admissible, they must be such as reflect light on or qualify the possession itself, or be so connected therewith as to illustrate its character"

--and as illustrative of that rule, the court said:

"Thus * * * It was held that it was proper to prove what the person in possession of the slave said as to the ownership, as that was explanatory of the possession."

Every person owning or lawfully possessed of land has a right to know who is the owner of sheep trespassing upon his land while in charge of a herder, and the herder in charge is the one of whom inquiry would most naturally be made. We think the answer made by the herder, that the defendant was the owner, is evidence in the nature of res gestæ to explain his possession, and, under the decisions of this court which we have cited, the evidence was clearly competent. The weight and effect to be given to such evidence is a question for the...