18 P.2d 1106 | Mont. | 1932
The testimony clearly disclosed that so far as sheep leases of the plaintiff and his assignors were concerned, other horses than those of the defendant, as well as the sheep of the plaintiff and his assignors, ranged on the respective sheep leases. No attempt was made by the plaintiff or his assignors, or any witnesses, to fix the length of time or number of defendant's horses alleged to have ranged on the leases as compared *95 with the time or number of other horses ranged thereon. No attempt was made to show the amount of pasturage or range alleged to have been fed off by the horses of the defendant as compared to the pasturage, or range destroyed or fed off by other horses as well as the sheep of the plaintiff and his assignors. A witness may state the facts upon which the damages are predicated and if qualified give his opinion upon a question of value, but he cannot express an opinion as to the amount of damages, because that is within the province of the jury.
The witness Hill was not qualified nor was any proper foundation laid, in that the jury were not informed as to the condition of the pasture before the trespass, the extent of territory grazed over, the number of defendant's horses in 1930 and 1931, as distinguished from other horses, nor the reasonable value of such pasturage in that locality at that time. (Cox v.Crane Creek Sheep Co.,
The direct opinion of a witness as to the amount of damages is not generally admissible. (3 Jones' Commentaries on Evidence, 2502, par. 1367; 22 C.J. 204, par. 598; Cox v. Crane CreekSheep Co.,
Even though a witness may be the owner of land upon which a trespass has been committed, nevertheless this does not relieve him entirely from the rule set forth above relative to qualification and competency. (5 Nichols on Applied Evidence, 4580; Port Townsend Southern R. Co. v. Nolan,
The defendant contends that the answers to questions relative to alleged damages to plaintiff and his assignors by reason of time taken in driving horses from their lands were pure speculation and surmise. No foundation was laid as to the reasonableness of the charges. The general test to be gathered from the rulings is that anyone sufficiently familiar with the commercial value of such services may testify. (Wigmore on Evidence, sec. 715; Cowdery v. McChesney,
Assuming that defendant did overstock its lease and that by reason thereof a certain number of its horses trespassed or strayed upon plaintiff's or his assignor's leases, it is as reasonable to conclude that likewise a number of defendant's horses strayed upon these lands through the natural instincts and proclivities of these animals. No evidence was introduced to show what proportion of defendant's horses, if any, were compelled to stray from the lease. We submit, therefore, that not only upon the evidence of the plaintiff but upon the evidence of the case in its entirety, there was no basis proven for overstocking the lease. (See Haskins v. Andrews,
Plaintiff in this case totally failed to introduce sufficient evidence to differentiate between damages caused by defendant's stock and that caused by others. (Dooley v. 1750 Head ofSheep, 101 Cal. xvii, 35 P. 1011; Lessman v. Anschustigui,
The answer admits the allegations of the amended complaint as to the incorporation of the defendant and its possession under lease of approximately 115,000 acres of land in the reservation, but denies positively or on information and belief all the other allegations thereof.
On October 13, 1931, the plaintiff filed a supplemental complaint in four counts based on a continuation by the defendant of the alleged trespasses on the lands of himself, Chris D. Miller and Henry G. Miller, Kuhr Land Livestock Company, and Hans F. Siert and Peter T. Siert, from on or about December 4, 1930, to October 1, 1931. The defendant answered by denying positively or on information and belief all the allegations contained in the supplemental complaint.
The case was tried by the court sitting with a jury. At the close of his case in chief the plaintiff procured the dismissal of the fourth cause of action. Thereafter the trial resulted in a verdict in his favor for actual damages in the lump sum of $15,000. Judgment in conformity with the verdict was thereupon entered. The motion of the defendant for a new trial having been denied, it has appealed from the judgment.
It appears from the record without controversy that the Fort Belknap Indian Reservation has an area of about 500,000 acres; that the lease of defendant of land therein embraced about 122,000 acres, and that the leases of plaintiff and his assignors, Chris D. Miller and Henry G. Miller, Angus Morrison and K.T. Butler, Kuhr Land Livestock Company, and Hans F. Siert and Peter T. Siert, of lands therein embraced, respectively, about 7,900, 91,000, 4,160, 107,600 and 9,500 acres. It further appears from the record that the land of defendant lay in the southwestern part of the reservation, and the lands of plaintiff and his assignors, with the exception of a tract of about 100,000 acres held by the Kuhr Land Livestock Company, lay directly north thereof. The 100,000-acre tract lay east and north of defendant's land. The leaseholds of plaintiff and his assignors were not inclosed when their occupancy began. In the months of April *99 and May, 1930, however, the Millers fenced approximately 41,000 acres of their leasehold and thereafter used the same to pasture their cattle. The Sierts' land and the Millers' fenced land adjoined defendant's leasehold. The land of defendant was fenced on the west, south and east sides, and after the erection of the Miller fence to the extent of about seven miles on the north side. A stretch of about nine miles extending eastward from the reservation line always remained unfenced.
The testimony in behalf of plaintiff showed or tended to show that with the exception of the 41,000-acre tract mentioned above, he and his assignors used their lands principally for the grazing of sheep, while the defendant used its land exclusively for the grazing of horses. Owing to a severe drouth in the years 1929, 1930 and 1931, grass was shorter than usual on the reservation, and particularly so on the land of defendant. Much of the time its horses in considerable proportions did not live on the leasehold at all, but ranged almost at will all over the reservation (and even beyond it) from the Milk River Valley on the north, to the Little Rocky Mountains on the south and from the west line fence in Blaine county to the east line fence in Phillips county. Bands of them frequently entered the leaseholds of plaintiff and his assignors and consumed grass thereon. Nor were they alone in their trespasses. Other steeds, owned or ownerless, as the case may be, kept them company in goodly numbers, but they were nearly always in the minority, varying downward, as they did, from six-tenths to one-tenth of the whole. Occasionally employees of the defendant drove many of its vagrant horses on the lands of the plaintiff, the Millers, and the Kuhr Land Livestock Company. During the three years referred to, the defendant kept between 7,000 and 8,000 horses on the reservation. The defendant's own range was always "fed down" very close and its horses ate a great deal of the grass which grew on the lands of plaintiff and his assignors, thereby depriving their sheep to some extent of necessary feed. Indian agents and others complained from time to time *100 to the defendant regarding the trespasses being committed by its horses.
The testimony on the part of defendant showed or tended to show that at no time did it have to exceed 5,600 horses on the reservation; in the fall of the year the number was far less. Formerly government regulations permitted one horse for each twenty acres, but now they permit one horse for each twenty-four acres. Under favorable conditions fifteen acres will support such an animal. The defendant employed riders to keep its horses within its land and to return those of them which happened to stray away. Neither the foreman nor any other employee of the defendant, so far as he knew, drove any of its horses on the lands of plaintiff and his assignors. Horses belonging to the defendant and others which strayed on farms west of the reservation were regularly driven back by the owners thereof. Sometimes they left them on what was designated as Kuhr Land Livestock Company lease No. 9, being a tract of about 7,600 acres and included in the area of 107,600 acres hereinbefore mentioned.
Defendant contends there was no evidence of overstocking of[1, 2] its leasehold on its part. We cannot acquiesce in that position. At best the evidence conflicted in respect to whether or not there was overstocking, and, therefore, it became a question of fact for the jury, if liability attached at all. But, defendant argues, even though it be conceded that it did overstock, still it was incumbent on plaintiff to definitely show the number of horses which left its land in search of food, as distinguished from the number, if any, which roamed away in response to their natural inclinations. No such burden rested upon plaintiff. It is more in consonance with justice and the rules of Code pleading to hold, as we do, that the duty of alleging and proving that some of its horses strayed on the lands of the parties complaining, under the natural urge to travel and not because they needed food devolved on the defendant. (Sec. 9147, Rev. Codes 1921.) In speaking thus we appreciate, of course, the difficulty of making proof of that character. *101
The plaintiff, then, having made a prima facie case of overstocking and consequent trespasses on the lands of himself and his assignors, was there liability therefor on the part of defendant? The answer should be, and is, in the affirmative. Where one stocks his own land with a greater number of horses than it can properly support, so that in order to sustain life or obtain the necessary amount of grass they are forced to pasture on the lands of others, the duty to make compensation to the persons wronged is as clear as it would be if they were driven thereon in the first instance. (Lazarus v. Phelps,
Defendant urges that the plaintiff was not qualified to[4] testify to the value of the grass on his land which was eaten by trespassing horses in the years 1929, 1930 and 1931. He had been in possession of the property, or most of it, since July, 1928, had used it for grazing his sheep, had paid rent therefor at the rate of twelve and one-half cents an acre per year, and had seen with his own eyes the injury done to the pasturage by these horses. The witness possessed the necessary qualifications and his testimony as to such value was competent. (Herrin v. Sieben,
It is a well-established rule of evidence that a witness may[6] estimate the number of animals he has seen in a given place and the proportion of them that bore a particular brand. He may also, if qualified by observation and experience, estimate what proportion of a crop has been consumed or destroyed in a certain way or by a certain agency. (Sabine E.T. Ry. Co. v.Brousard,
In the course of the trial E.T. Butler, a witness for the[7] plaintiff, was asked the following question on his direct examination: "What was the total amount of your expense, would you say, in trying to keep the stock off your lease during the time you had it?" Counsel for the defendant objected on the ground "that apparently part of the expense would be on account of horses not included in the issues in this case." The court then remarked: "That is understood, *103
but we cannot go out and count horses when they are by the thousands. Go ahead." It is now claimed the remark was prejudicial to the rights of the defendant. Counsel did not except to the remark at the time or ask the court to instruct the jury to disregard it. The court, however, in its general charge to the jury appropriately dealt with the matter. The defendant is not in a position to avail itself of the error, if such it was. (Conway v. Monidah Trust,
We cannot see how under any stretch of the imagination the[8] defendant was hurt because the plaintiff in the midst of the trial was allowed to amend the fifth cause of action by excepting sections 16 and 36 in each township from the description of what has been called the east Kuhr Land Livestock Company lease of approximately 100,000 acres. The amendment could have only one reasonable effect, and that was to reduce the size of the verdict in the event the jury found the company was substantially damaged by the trespasses complained of in said count.
Defendant asserts with much vigor that the evidence failed to[9] differentiate between the damages caused by its horses and the damages caused by the horses of others, and hence it was entitled to a nonsuit generally. According to modern authority, at least, such failure was not fatal to plaintiff's case. Where the injury occasioned by the tortious act of a defendant is indistinguishable from that arising from a like act of others, the approved practice is to permit the jury, as reasonable men, to make from the evidence the best possible estimate and to award the plaintiff compensatory damages for the injury. (Watson v.Colusa-Parrot M. S. Co.,
The court instructed the jury that under certain circumstances[10] they were at liberty to award the plaintiff exemplary damages. Appellant submits there was no evidence to support the instruction and assigns the giving of it as error. The instruction was too broad in its application, but, as the jury refused to allow exemplary damages, defendant suffered no prejudice. (Martin v. Corscadden,
The witnesses Hill, Miller and Butler were competent to[12-14] testify as to the reasonable expense of driving trespassing horses off their respective leaseholds. (Tandy v.Fowler, supra; 3 Jones' Commentaries on Evidence, sec. 1366; 2 Nichols on Applied Evidence, 2045, 2046; 17 C.J. 914, 915; 22 C.J. 592-594.) But it was not proper to permit them, over objection, to testify in a jumbled way respecting the cost of driving such horses off and of keeping them or other horses from coming on the premises and even, in one instance, of herding cattle for a season. In actions of this *105
kind the measure of damages is the amount which will compensate the party aggrieved for all the detriment proximately caused by the tort, whether it could have been anticipated or not. This, of course, may include both general and special damages. "General damages" are such as naturally and necessarily result from the act of which complaint is made. "Special damages" are such as are the natural, but not the necessary, consequences of that act. (Sankey v. Chicago etc. Ry. Co.,
The court instructed the jury on the theory that under the[15] evidence the plaintiff could recover general damages, substantial in character, for the trespasses alleged in the third, fifth and sixth counts of the amended complaint. The record, however, does not disclose any evidence which shows, or tends to show, that so far as these trespasses are concerned the plaintiff is entitled to more than nominal damages. The verdict being for a lump sum cannot stand, as it is impossible to determine what amount the jury allowed for the wrongs claimed in any one of the five causes of action. (Duckett v. Biggs,
We deem assignments of error not covered by anything we have said of no importance.
The judgment is reversed and the cause remanded for a new trial.
MR. CHIEF JUSTICE CALLAWAY, ASSOCIATE JUSTICES ANGSTMAN and MATTHEWS, and HONORABLE JOHN HURLY, District Judge, sitting in place of MR. JUSTICE FORD, disqualified, concur.
Rehearing denied February 15, 1933. *106
