176 P. 186 | Or. | 1918
Defendant urges very earnestly:
“That modern legislation in this state, together with the changed conditions in eastern Oregon, and the customs of the stockmen residing there, has abrogated the common-law rule in regard to animals running at large in the state.”
In support of this contention our consideration is directed to the cases of Campbell v. Bridwell, 5 Or. 311, and Walker v. Bloomingcamp, 34 Or. 391 (43 Pac. 175, 56 Pac. 809). As regards the first of these eases, it may be observed that the decision is based upon the statute then existing in relation to trespass by stock, and in the second, the opening paragraph of the opinion, /which was written by Mr. Chief Justice Bean, says:
“The common-law rule, by which the owner of domestic stock was made liable for the injury done by them to the uninclosed lands of another is not in force in the portions of this state to which the fence law is applicable: Campbell v. Bridwell, 5 Or. 311.”
It is next maintained that plaintiff is not entitled to recover for the damage done to the grass upon its lands, because the punctuation of the complaint appears to make it claim compensation for nothing more than the destruction of corrals, trees, poles and fencing, but we think that in this contention the learned counsel is hypercritical. We think that no reasonable person could be misled by the erroneous punctuation into thinking that the plaintiff was not seeking compensation for the loss of the grass.
“The declaration of Robinson’s wife, made while she was at work on the stock, that it belonged to the plaintiffs, was competent evidence to show their title. Her possession unexplained would have been evidence of title in herself. In the absence of proof to the contrary, she would be presumed to hold and claim for herself. But her declaration, accompanying the act of possession, shows that she holds not for herself, but for the plaintiffs. Such declarations of the persons in possession are not only competent evidence to rebut a title set up' by or under the party who made them, but are affirmative evidence of title in the party for whom the person in possession declares that he holds it,” citing a number of cases in support of the doctrine.
*241 “It is assigned for error that the court below, over the objection of appellants, admitted evidence of the cutting of the grass, and taking and carrying away hay on the 5th day of July, 1876, when the trespass was alleged to have taken place on the 4th of July, 1876, and was not laid for any other day.
“The former doctrine was that such proof could not be admitted when the complaint contained no continuando nor any allegation of the trespass on ‘divers other days. ’ This doctrine, however, is not consistent with the liberal rule required under our practice. The courts must see that substantial justice is done, and technical objections, not affecting the substantial rights of, the parties, must be disregarded.”
This quotation is in harmony with the provisions of Section 97, L. O. L., which declares that no variance between the allegation in a pleading and the proof shall be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. There is nothing in the record before us to indicate that the defendant was so misled.
There are some other minor assignments of error in the abstract, bnt except as they have already been discussed herein, they are not urged in defendant’s brief and we assume that they were abandoned.
The judgment is therefore in all things affirmed.
Affirmed.