155 P. 1114 | Mont. | 1916
the opinion of the court.
The questions presented by these appeals are: (1) Sufficiency of the complaint; (2) sufficiency of the evidence; (3) the propriety of certain rulings in the admission of evidence, in the giving of plaintiff’s offered instruction numbered 1, and in the refusal of defendants’ offered instructions 3, 4, 6, 7, 8 and 11; (4) the allowance of a certain item of costs.
1. The complaint alleges ownership in the plaintiff of certain land, a portion of which had been reserved for pasture and upon five acres of which he had growing 100,000 young orchard trees; that defendants are sheepmen; that on a certain day “the defendants were moving a large band of sheep across the country and in the vicinity of plaintiff’s said land, and while so doing, and while said sheep were under their control, they negligently
. 2. The answer denies the negligence alleged, admits that some sheep belonging to defendants strayed upon the plaintiff’s land, and pleads affirmatively that said land was not inclosed with a legal fence, that said sheep “got beyond the control of the employees of the defendants” and were not driven on to said land or knowingly permitted to remain there by the defendants or by those in charge of said sheep. As regards the want of
Briefly stated, the ease made is as follows: On the day in question, the defendants’ sheep, to the number of about 5,000, in charge of two herders and accompanied by a foreman and some dogs were being driven to a place called Clawson’s ranch, which adjoins the land of plaintiff. They had been on the way without feed since morning, but there was feed for them at Clawson’s ranch. They were traveling a lane from which the plaintiff’s land was separated by a three-wire fence. This land consisted of a pasture within which, separately inclosed by a two-wire fence, was a five-acre nursery tract upon which about 100,000 apple trees were growing. When the sheep were within about a half mile of their destination, darkness fell, and the foreman, deeming it impossible to drive them farther, ordered them bedded down in the lane, making no provisions for feeding them there. He then left without waiting to see if his orders were carried out, and spent the night at Clawson’s. The next morning it was ascertained that the sheep had passed over the plaintiff’s land, eaten the pasture, and destroyed, the greater portion of the nursery. The physical evidences upon the ground indicated, not that a portion of the sheep had strayed, but that the whole band had left the lane and gone across the plaintiff’s land. One witness says the nursery looked as if they had been bedded there, and they were seen on the plaintiff’s land next morning being driven by the herders toward the feeding ground at Clawson’s. The foreman being advised by one of his subordinates of what had occurred, expressed regret, saying that he did not know that any nursery stock was there.
3. We find no reversible error in the rulings complained of touching the admission of evidence. The propriety of the court’s instruction numbered 1 and of the refusal of defendants’ offered instructions numbered 3 and 4 follows from what is said above. Offered instructions numbered» 6 and 7, so far as correct, were fairly covered. Offered instruction No. 11 is incorrect in point of fact. As to offered instruction No. 8, the court cannot be put in error for its refusal in view of what is
4. Among the costs allowed to the plaintiff is an item of $67.70
The order appealed from is affirmed and the cause is remanded" to the district court, with directions to correct the judgment by reducing the mileage allowed the witness Goodrich to $21, and as so modified the judgment will stand affirmed.
Modified and affirmed.