Willis v. Davis

• Decision Date: 09 December 1958
• Docket Number: No. 37947,37947
• Citation: 333 P.2d 311
• Parties: Rodger WILLIS, Plaintiff in Error, v. M. L. (Bud) DAVIS, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 311

333 P.2d 311

1958 OK 288

Rodger WILLIS, Plaintiff in Error, v. M. L. (Bud) DAVIS, Defendant in Error.

No. 37947.

Supreme Court of Oklahoma.

Dec. 9, 1958.

Syllabus by the Court

1. Where lands held in severalty are within a common fenced enclosure devoted to cultivation of agricultural crops and to pasture, an occupant of the portion thereof devoted to pasture must prevent his live stock from trespassing upon the crops of the other occupant.

2. Where, in an action, plaintiff claimed damages for the destruction of crops resulting from a trespass thereon by defendant's cattle and requested instructions on substantial damages, but none on nominal damages, there was no error in not submitting the issue of nominal damages.

3. Upon grounds of public policy, jurors will not be heard by affidavit, deposition, or other sworn statement to impeach the verdict, to explain it, to show upon what grounds it was rendered, or to show mistake in it, or that they misunderstood the charge of the court, or that they otherwise mistook the law, or the result of their findings.

Appeal from the District Court of Kiowa County; Weldon Ferris, Judge.

Action for damages for trespass of defendant's cattle on plaintiff's crop. From a judgment for defendant, plaintiff appeals. Affirmed.

Tolbert & Gillespie, Hobart, for plaintiff in error.

Clayton Carder, of Carder & Carder, Hobart, for defendant in error.

CORN, Vice Chief Justice.

M. L. (Bud) Davis acquired leases for grazing and cultivation on two quarter sections of land located in Kiowa County, Oklahoma for the term ending December 31, 1955.

Among other things the leases in question provided:

'Surrender clause permitting seeding of fall crops: It is understood and agreed that the lessee will surrender to the lessor or any succeeding lessee, without cost, the stubble land to be seeded to small grain, winter legumes, sweet clover or alfalfa, immediately after the grain is harvested, when the lease expires at the close of the calendar year. (Stubble land shall include all land from which a small grain or legume crop was harvested the current year.) Only stubble land will be considered suitable for small grain, winter legume, sweet clover or alfalfa. Sorghums are not a small grain crop. Harvesting is considered to include harvesting by pasturing as well as by conventional harvesting methods, and possession will be given in any event not later than five months before the lease expires.'

A portion of each tract was cultivated and a portion used as pasture. There were no cross fences. Davis planted approximately 20 acres in one tract in Sudan grass and pastured it.

Rodger Willis acquired leases on both of said tracts for the year 1956. By virtue of the terms of the leases he was entitled to the stubble land on each tract August 1, 1955. Shortly after harvest Willis went on each tract and prepared the stubble portion thereof for planting.

On October 11, 1955 he notified Davis to remove his cattle from the cultivated land on each tract where he was sowing wheat. Willis sowed 54 acres to wheat and 20 acres to millet on one tract. On the other tract he sowed 56 acres to wheat and 25 acres to millet.

Davis did not remove his cattle. Neither did he fence off the cultivated land.

Willis brought this action against Davis for damages to his crops alleging that Davis permitted his cattle to run at large and trespass upon the land legally in possession of Willis. His first cause of action is for damages to the 54 acres of wheat and 20 acres of millet. His second cause of action is for damages to the 56 acres of wheat and 25 acres of millet. He prayed for a total damage in the amount of $2,474.92.

Davis answered by way of general denial. He then alleged that it was his right to use the pasture land on both tracts, and that it was the duty of Willis to erect a fence to keep the cattle from the growing crops.

The evidence is conclusive that defendant's cattle were permitted to run upon both tracts and that they were on the areas planted to wheat and millet by the plaintiff. There is a sharp conflict as to whether such crops were damaged thereby or whether they were damaged by the drouth.

The trial resulted in a jury verdict in favor of the defendant. Plaintiff appeals.

Plaintiff contends that the verdict was contrary to law and in disregard to the court's instructions, since under the instructions it was not possible under the evidence for the jury not to render a verdict for the plaintiff in some amount, if only for nominal damages.

This is predicated upon the fact that the evidence discloses, and the defendant admits that his cattle were permitted to run on both tracts without regard to the cultivated portion; that since there was an admitted trespass under the instructions the jury was required to find for the plaintiff in some amount; and that even though the defendant had the right to use the pasture until December 31, 1955, by the terms of the lease, he had the right to stubble land for the purpose of planting wheat to be harvested the following year which required the defendant to fence his cattle away therefrom to prevent damage thereto.

This court is committed to the rule that where lands held in severalty are within a common fenced enclosure devoted to cultivation of agricultural crops and to pasture, an occupant of the portion thereof devoted to pasture must prevent his live stock from trespassing upon the crops of...