Walter v. Echanis

• Decision Date: 30 October 1939
• Citation: 95 P.2d 979,163 Or. 148
• Parties: WALTER ET AL. <I>v.</I> ECHANIS ET AL.
• Court: Oregon Supreme Court

163 Or. 148

95 P.2d 979

WALTER ET AL.v.

ECHANIS ET AL.

Supreme Court of Oregon.

Argued at Pendleton October 30, 1939.

Affirmed November 21, 1939.

Animals — Trespass — Damages

1. In action for trespass by sheep on plaintiffs' land, measure of damages was reasonable value to plaintiffs of grass or pasturage eaten or destroyed by the sheep together with the injury, if any, to the freehold.

Evidence — Damages — Value

2. In action for damages resulting from trespass by sheep which allegedly destroyed plaintiffs' rye grass, wherein a witness for the plaintiffs testified that plaintiffs' rye grass land was about on average with most of land in immediate vicinity, evidence of experienced stockman and of experienced cattleman who were acquainted with range conditions in the vicinity including land in question, and with market price of hay, relating to probable amount of rye grass hay plaintiffs' land would have yielded had it been allowed to mature without being injured and the value thereof was admissible.

Damages — Value of crop

3. Considerable latitude will be allowed in regard to admission of evidence to prove value of a crop which has been injured or destroyed.

Trial — Witnesses

4. The fact that testimony of a witness may contain contradictions or may be altered or modified on cross-examination is not ground for striking it out.

Trial — Expert witnesses

5. Refusal to strike out testimony of plaintiffs' expert witnesses relating to value of hay allegedly destroyed by trespass by defendants' sheep, because of fact that the testimony of the experts was somewhat shaken on cross-examination, was not error, since the objection went to the weight of the evidence rather than to its admissibility.

Animals — Trespass — Value

6. In action for trespass by sheep upon plaintiffs' land, wherein the court eliminated from consideration any injury to freehold, court's refusal to permit witness for defendants to testify relating to market value of land prior and subsequent to time of trespass was not error.

Appeal and error — Offer of proof

7. Alleged improper exclusion of evidence did not require reversal where no offer of proof was submitted, and the supreme court could only speculate as to answer of the witness if he had been permitted to testify, since error would not be presumed.

Animals — Damages

8. Plaintiffs' damage resulting from trespass of sheep upon plaintiffs' land including tract of rye grass was for jury.

                  See 2 Am. Jur. 768
                  3 C.J.S. Animals, § 206a
                

In Banc.

Appeal from Circuit Court, Malheur County.

CHARLES W. ELLIS, Judge.

Action by Grant Walter and another against Joe Echanis and another for damages for trespass by sheep upon land owned by the plaintiffs. From an adverse judgment, defendants appeal.

AFFIRMED.

Pat H. Donegan, of Burns, for appellants.

Charles W. Swan, of Vale (Lytle & Swan, of Vale, on the brief), for respondent.

BELT, J.

This is an action to recover damages for trespass by sheep on the land owned by plaintiffs. The allegations of the complaint, so far as material to the issues presented on this appeal, are that the defendants, between May 1, 1937, and June 23, 1937, drove and herded a band of approximately 1800 sheep over and upon land of the plaintiffs, thereby destroying the "grass and other herbage and pasturage thereon" and injuring and destroying the roots thereof to plaintiffs' damage in the sum of $500.

Defendants admit the trespass which, they aver, was due to inadvertence and mistake but allege the "injury to the premises and the amount of feed and pasture consumed thereby was not more than $15.00 or $20.00." Defendants tendered judgment in the sum of $40.

The cause was submitted to a jury and a verdict returned against defendants for $250. From the judgment entered on such verdict, the defendants appeal.

Plaintiffs' land on which the trespass occurred consisted of a 240-acre tract and a 320-acre tract, located in Barren Valley district in Malheur county, Oregon. The damage, however, resulted principally to the 240-acre tract upon which there is a strip of 80 to 100 acres of rye grass along Crowley creek. Rye grass is a native perennial in eastern Oregon. According to the Range Plant Hand Book, prepared by the Forest Service of the U.S. Department of Agriculture, "Giant wild rye is grazed to some extent while young, but soon becomes coarse and tough, and is not utilized as summer forage, if more palatable feed is available * * *. This species is extensively cut for hay and, if moved early, provides fair roughage * * *."

Defendants assert that the trial court improperly instructed the jury concerning the measure of damages to be applied to the issues under the pleadings. More specifically, the defendants contend that plaintiffs alleged an injury to the freehold and that, therefore, the proper measure of damages is the difference in value of the land before and after the trespass. Defendants say, in effect, that they could not, under the allegations of the complaint, be reasonably expected to come into court prepared to show the value of rye grass if crop had matured.

There is much diversity of opinion among the courts as to the measure of damages to be applied for the injury or destruction of growing crops. See numerous cases in notes 23 L.R.A. (N.S.) 310; 37 L.R.A. (N.S.) 976; 49 L.R.A. (N.S.) 415; 15 American Jurisprudence 260. The difficulty lies, however, not so much in the statement of the rule of damages as in determining the kind of evidence to be admitted to show the damage sustained. We think, however, that the rule is well settled in this state. There is no need of encumbering the reports by a review of the numerous authorities in other jurisdictions.

1. In Pacific Livestock Company v. Murray, 45 Or. 103, 76 P. 1079 — a sheep trespass case — the court said:

"The measure of damages was the reasonable value to the plaintiff of the grass or pasturage eaten or destroyed by defendant's sheep, together with the injury, if any, to the freehold."

Laur et al. v. Walla Walla Irrigation Co. et al., 118 Or. 520, 247 P. 753, involved damages to a growing crop of alfalfa caused by wrongful interference with a water right. The court held that it was...