86 Iowa 693 | Iowa | 1892
This case has once before been in the court upon an appeal from an order overruling a demurrer to the plaintiff’s petition. See 76 Iowa, 337. We held on that appeal that where cattle not running at large, but in charge of the owner or his agent, are driven and kept upon the uninclosed land of another against his will, the owner of the cattle is liable to the owner of the land for the damage to the grass growing on the land. The cause was, tried upon its merits in the light of the opinion upon the former appeal, and without setting out the evidence we may say that the jury were fully warranted in finding that the defendants were liable for what damage was done by their cattle. This disposes of the question that the verdict is not supported by the evidence.
II. . It is claimed in behalf of the appellants that the instructions given by the court to the jury ou the measure of damages are erroneous. Those complained of are as follows:
2. -: -: -: instructions to jury. “The measure of the plaintiff’s damage for the loss or injury to the grass for the years 1886 and 1887, if you find that he has sustained any damages in that regard, will be the actual damage done to the grass crop for these years by the defendants’ cattle; that is, the difference*696 between the actual market value of the crop upon the land for those years as it was and what its market value would have been had the plaintiff’s cattle not been driven or herded or pastured upon the land. To state it in other words, the question for you to determine from the evidence in fixing the amount of damages, if any, on this claim is, how much less was the actfiaL rental value of the land for the grass crop of these years by reason of the defendants’ cattle having been driven or herded upon the land than it would have been had the cattle not been driven or herded upon the land? If you find that the plaintiff is entitled to recover in this case, you will ascertain whether he has sustained any damages by reason of any permanent injury to the growth of grass on said land. The plaintiff’s damages upon this claim, if he is entitled to recover any, will be such only as injuriously affect the market value of the land, and must be fixed at the difference between the actual market value of the land at the time the defendants’ cattle ceased to be herded upon said land and what would have been its mai'ket value at that time if the cattle had not been herded or driven upon it at all; or, in other words, the question here to be determined is, how much less, if any, was the land worth in the market by reason of the defendants’ cattle having been driven or herded upon the land than it would have been had the cattle not been herded or driven on the land? If you find from the evidence that the plaintiff is entitled to recover damages from the defendants, you will declare the same by your verdict; but, in determining the amount of damages, you must confine the same to the damages committed by the defendants’ cattle. You will not allow him for any injuries to the grass on the land that may have been committed by other cattle, nor will you allow him damages for any injuries that may have been committed in prior years, or prior to the time of giving the notice, if one was*697 given, as lias been defined to you in these instructions.”
It is claimed that there was evidence that the cattle of other persons trespassed upon the plaintiff’s land at the same time that the defendants grazed their cattle thereon, and that, as the defendants did not do all the damage, it was error to instruct the jury that there could be a recovery for more than nominal damages. It is true, the evidence shows that other cattle than those owned by the defendants were at times- on the land for brief periods, but it fairly appears that the actual grazing upon the land was done by the defendants’ cattle. The claim was that all of the injury was done by the defendants. If they had a partial defense to the' action it was incumbent on them to introduce evidence-to sustain it. In any event, we think the evidence was sufficient to authorize the instructions complained of.
IY. It is urged that the- verdict was excessive; We do not concur in this claim. It was for the sum of
•Y. The plaintiff filed an amendment to appellant’s abstract, in which certain alleged corrections were made, and the claim was also presented that the bill of exceptions was insufficient to preserve the evidence and rulings of the court and exceptions thereto. The appellants, in an.abstract in reply, deny the correctness of the appellee’s abstract, and, in a motion filed in the case, ask that the costs of the additional -abstract, and of the transcript made necessary thereby, be taxed to the appellee. This denial and the hiotion has made it necessary to examine the transcript to determine whether the’additional abstract is untrue. The examination has been made, and we find that the additional abstract is correct. It supplies evidence which was omitted from the appellants’ abstract, and corrects one mistake in appellants’ abstract. We discover no ground for sustaining the motion to tax costs to the appellee.
' The judgment of the district court is affirmed.