205 P. 262 | Idaho | 1922
This is an action for trespass. In her amended complaint respondent alleges among other things that she was, at all times mentioned, the holder and in possession of certaixx described land; that appellant during the spring, fall and winter of 1917 and the spring, fall and winter of 1918, grazed his sheep upon said land to respondent’s damage in the sum of $3,000. She also alleges that G. S. See was her agent at all times mentioned in the complaint, her husband being in the service of the United States in France, thus injecting into the pleading, in an indirect way, the fact that she ‘was married at the time the action was brought. After a trial to the court without a jury, the court found that at all times in question respondent was and now is the holder and in possession of the property described ; that at different times after May 22, 1918, appellant and his agents unlawfully permitted certain of his sheep to go upon respondent’s land, and that said sheep ate up and tramped out certain grasses growing thereon to her damage in the sum of $100. Judgment was entered accordingly, from which appellant takes this appeal.
"We will first consider point (a) of the second specification of error. The evidence shows that respondent, while a single woman, on April 23, 1915, entered the land in question as a homestead. On December 21, 1917, she married and her husband was living at the time of the suit. On April 29, 1918, she made final proof and obtained a receiver’s certificate. Appellant contends that, on these facts, the land was community property at the time the action was brought. If it was, respondent had no right to bring the action and it must fail. (C. S., sec. 4666; Holton v. Sand Point Lumber Co., 7 Ida. 573, 64 Pac. 889.) This court has held: “Where a government homestead entry has been made and the equitable title thereto has been earned prior to the marriage of the entryman, the property acquired under such entry will become the separate property of the entryman under secs. 2678 and 2679 of the Rev. Codes, although such entryman marries prior to making final proof or acquiring the legal title to the land.” (Humbird Lumber Co. v. Doran, 24 Ida. 507, 135 Pac. 66.)
Appellant’s counsel sees in this decision an intimation that, if the marriage occurred before the entryman had earned title, the property would have been community property. The decision does not so hold and we do not think it so intimates. It does not appear from the statement of facts
The proper measure of damages in this case is the value of the grasses at the time of their destruction. (Risse v. Collins, 12 Ida. 689, 87 Pac. 1006.) Evidence was introduced, some of it over the objection of appellant, as to the purchase price of certain hay and pasture, which respondent bought because the pasture on her own land was consumed by appellant’s sheep. The admission of this testimony was erroneous, as it did not show the value of the grass destroyed. However, appellant does not specify the admission of this evidence as error. As point (b) of the second specification, he complains that the stock, for which the hay and pasture were bought, was community property. In this he is borne out by the evidence and, if this were the only damage shown, the point would be well taken. This, however, is not the case. Respondent also introduced a great deal of evidence to show the rental value as pasture, of the grass land trespassed upon. This was a proper method of proving
I Point (c) is that respondent and her father were in partnership. There is no evidence to sustain this contention. The evidence shows that her father was farming the place on shares, he to receive two-thirds and she one-third of the proceeds. The evidence is sufficient to support the finding of the court that respondent’s interest in the grass destroyed amounted to $100.
We will next consider specification No. 1, that plaintiff’s amended complaint does not state a cause of action. Appellant’s point is that respondent does not allege directly that the land is her separate property. She does allege that she is the holder of it.- Appellant did not demur to the amended complaint. He contends, however, upon the authority of. Holton v. Sand Point Lumber Co., supra, that the complaint fails to state a cause of action because, while alleging that respondent is a married woman, it fails to directly allege that the propeidy was acquired before marriage, and was thus her separate property. It is true that, in the absence of evidence to the contrary, a presumption arises that prop-' erty acquired after marriage is community property. It does not appear from the complaint, however, that the property was acquired after marriage. A complaint should be more liberally construed after judgment, especially when the point is first raised in the appellate court, than on demurrer or motion before trial. (31 Cyc., p. 82, (3).) The point not having been raised by demurrer, we conclude that the failure of respondent to plead that the property was acquired by her before marriage is not such a fatal defect as would justify us in holding, after judgment, that the complaint fails to state a cause of action.
■The judgment is affirmed, with costs to respondent.
