222 P. 577 | Wyo. | 1924
This action was for damages alleged by plaintiff to have been caused by the trespass of defendant’s sheep on plaintiff’s irrigating ditch, and for an injunction to secure the plaintiff against the continuance or repetition of such trespass. The trial was had without a jury and judgment on general findings was for defendant with costs. The plaintiff has brought the case here by proceeding in error. The only question we need consider is whether under’, the admitted or undisputed facts the plaintiff was entitled to damages.
In the spring of 1919 the plaintiff, a corporation, owned the ditch in question which it used to carry water for irrigation, and domestic purposes. The ditch is not described with any particularity, but it is to be gathered that it was an ordinary trench with banks and bottom of the same earth as the surrounding lands. The defendant owned or had in his charge about 1100 ewe sheep which, for at least 20 days during the lambing season in the spring of 1919, were held under the care of defendant and 4 or 5 employees on lands adjacent to the ditch, using the ditch as a watering place for the sheep. The ‘ ‘ drop herd, ’ ’ made up of ewes that had not lambed, was driven daily from the range to the ditch and then back again to the range. The ewes that had lambed were left with the lambs in small "bunches” near the ditch so they of their own accord would go to the ditch
The foregoing facts were undisputed and, in our opinion, were sufficient to prove a wilful trespass entitling plaintiff to a judgment for the damages to the ditch unléss there was .evidence to justify a finding that defendant had a right to use the ditch in the manner described. The rule of the common law that makes it the duty of every man to keep his livestock within the limits of his own possessions has been so far relaxed in this state that the owner who permits his domestic animals to graze on the public lands cannot be held for damages occasioned by their straying upon the unenclosed lands of another. This is not because there is no trespass, but because there is no right to damages. Gillespie v. Industrial Co. 22 Wyo. 331, 334; 140 Pac. 832, 52 L. R. A. (N S) 133; Ann. Cas. 1917-A 287. The common law still prevails with reference to animals that are wilfully driven or herded upon the unenclosed property of another. Cosgriff v. Miller, 10 Wyo. 190, 222; 68 Pac. 206, 98 A. S. Rep. 977; Kendrick v. Healy, 27 Wyo. 123, 192 Pac. 601.
The defendant relies upon the case of Bellevue v. Daly, 14 Ida. 545, 94 Pac. 1036, 15 L. R. A. (N S) 992, 125 Am. St. Rep. 179; 14 Ann. Cas. 1136, holding that the owner of an easement to receive water through a ditch across defendant’s field could not, in the absence of negligence or malice, enjoin the ordinary use of the field aS| a pasture on the ground that the pastured stock polluted the water in the ditch. See, also, Durfee v. Garvey, 78 Calif. 546; 21 Pac. 302; Keller v. Fink, 4 Cal. Unrep. 730, 37 Pac. 411; Joslin v. Sones, 80 Ia. 534; 45 N. W. 917; Holfrich v. Cantonsville Water Co. 74 Md. 269; 32 Atl. 72, 13 L. R. A. 117, 28 Am. St. Rep. 245; McEvoy v. Taylor, 56 Wash. 357, 105 Pac. 851, 26 L. R. A. (N S) 222. The principle underlying these cases is “that every man has a right to the natural use and enjoyment of his own property; and if, while lawfully in
There has been some discussion by counsel of the nature and sufficiency of plaintiff’s title to the right of way for the ditch. The petition alleged that plaintiff was the owner of the ditch and the right of way therefor. The answer admitted plaintiff’s ownership of the ditch and that it was located as alleged'in the petition. The evidence showed that plaintiff was maintaining and using the ditch for the purposes already stated with such possession as it is possible to have of property of that kind. We think this was sufficient to show plaintiff’s right to maintain the action of trespass against a wrongdoer. Noble & Carmody v. Hudson, 20 Wyo. 227, 122 Pac. 901. The trial was had on the theory that plaintiff’s title and right to possession of. the ditch were not
It is contended that the evidence warranted a finding that the plaintiff sustained no actual damage as the result of the trespass. It is difficult to concede tins, for it is unreasonable to suppose, that the acts admitted to have been done could have failed to cause some actual damage to the diteh, and the evidence was undoubtedly sufficient to support a finding that the damage was considerable. However, the point is not material in deciding whether a judgment for defendant was warranted by the evidence. If an actionable trespass was committed the plaintiff was entitled to at least nominal damages. A trespass cannot be justified by pro'of that the damages were only nominal or even that the plaintiff benefited by it. Whittaker v. Stangvick, 100 Minn. 386; 111 N. W. 295, 10 L. R. A. (N S) 921, 117 Am. St. Rep. 703, 10 Ann. Cas. 528; Foust v. Kinney, 202 Ala. 392, 80 So. 474. It was held by this court in Hecht v. Harrison, 5 Wyo. 279, 40 Pac. 306, that in certain cases a reversal would not be ordered for failure to award nominal damages to the appealing party, but the opinion shows clearly that' the rule, could not be applied to prevent a reversal in the case- at bar where the defendant recovered his costs, and where the plaintiff ’s claim involves a right which we think needs to be vindicated and, possibly, protected by injunction.
Evidence that horses and cattle of other parties, were on the ditch at the same time defendant’s sheep were there, and that the horses and cattle may have caused a p'art ór most of the damages was important only in estimating the amount recoverable from, defendant. Powers v. Kindt, 13 Kans. 74; Brown v. McCload, 96 Ore. 549, 190 Pac. 578.
A temporary restraining order, granted at the time of commencing the action, was modified on defendant’s application before the trial. No question is raised as to .the propriety of the modification of this temporary order. We deem it unnecessary to discuss the right of plaintiff to a permanent injunction under the evidence in the record, as ■the lapse of time and change in conditions may have rendered that incidental relief unnecessary.
The judgment of the district court will be reversed and the cause remanded for a new trial.
Reversed and Remanded.
NOTE — See 3 C. J. pp. 127, 132, 147; 4 C. J. pp. 649, 1180; 38 Cyc. 1123; 40 Cyc. 829.