33 Utah 362 | Utah | 1908
This is an appeal by the defendant from a judgment rendered in the district court of Box Elder county in favor of plaintiff for damages alleged to have been caused by defendant’s sheep trespassing upon and eating off and destroying the grass and herbage upon certain lands of plaintiff situated in the northwestern- part of Box Elder county, this state. The land is described in the complaint as follows: “All of sections 29, 30, 31, and 32, township 14 N, of range 17 W., Salt Lake Meridian” — and is situated in what is known as “Cotton Thomas Basin.” This basin has an area of about
The evidence, without conflict, shows that plaintiff, long prior to the alleged trespass, notified defendant to keep off the land in question, and not to herd or bed his sheep thereon. On this point defendant testified in part as follows: “I remember a conversation with Mr. Jones [plaintiff and respondent herein]. It was about five or six years ago. He came and told me the sheep were on his land;, and wanted me to keep them off. . . . He asked me if I would keep them off. I said, ‘No;’ that I would not; that he was trying to control too much country; that I did not believe he could take up the land in the shape he said he was doing.” And again the defendant testified: “At the time charged that my sheep were upon this land I had no means of knowing where the sec .ions were, except by the posts and what fencing there was there.” That the trespass was wilful and intentional, is shown by the testimony of defendant’s witness B. C. Beid, who testified in part as follows: “I have been Mr. Blythe’s [defendant’s] foreman for two years. Mr. Bice, Mr: Bronson, and Jess Jones came to the camp and asked me if I intended to run on those four sections of Jones.’ ... I told them that I intended to run upon the basin there. They asked me if I did not know what Jones claimed, and I said I knew he claimed inside of the posts, and that I was going to run in there, leaving a place for his horses. . . . Mr. Blythe told me to run in the basin there; . . . that he didn’t think Jones had any land in there; and that he intended to feed in there.” On cross-examination the witness stated that he was on the four sections of land in question with defendant’s sheep in June, July, and August of 1905; that on one occasion two camps or beds were maintained there continuously for six days; and that the sheep could “go over in two days and take all the feed off pretty close.” To the question, “You went on intentionally, did you?” he an
Appellant assigns as error the refusal of the court to give the following instruction: “It appears by the uncontradicted testimony in the case that at the time of the alleged trespass plaintiff’s land was not inclosed by a lawful fence under the statutes of this state, and the jury are instructed to find the issues for the defendant.” Error is also alleged because of the court’s refusal to give other instructions asked for by appellant. As these additional requests involved only the same questions (presented in a different form) as are involved in the instruction 'above set out, we deem it unnecessary to further refer to them. The decisive question in the case is: Can an owner of live stock, in localities where there is a fence law in force, deliberately and intentionally invade the uninelosed lands of another,* knowing such lands to belong to another, and pasture his stock thereon, without incurring liability for the damage caused thereby? Section 20, Bevised Statutes 1898, so far as material here, provides:
*367 “If any neat cattle, . . . sheep or swine shall trespass or do damage upon the premises of any person, except in cases where such premises are not inelosed by a lawful fence in counties where a fence is required by law, the party aggrieved, whether he be the owner or the 'occupant of such premises, may recover damages by an action at law against 'the owner of the trespassing animals, or by distraining and impounding said animals in the manner provided herein.”
We think it is plain that the Legislature, by this statute, intended to take away all remedy by suit or impounding for damages caused by the stock of one party straying upon the uninclosed lands of another in counties where a fence law is required; and while it is true that, under the statute referred to, appellant would not have been liable for damages caused by an involuntary or inadvertent intrusion of his sheep upon the lands in question, the statute gave him no right to deliberately and intentionally drive his sheep, or to so direct their movement as to cause them to go, upon the lands in question, and keep them there against the will of the respondent. In other words, while the statute withholds from the owner of uninclosed lands, in counties where there is a fence law in force, the right to impound and hold for damages animals trespassing upon such lands, it certainly does not deprive the owner of the right to remove the trespassing animals therefrom; hence it necessarily follows that the owner may, by suit, collect damages for a wilful and malicious trespass, such as the evidence conclusively shows was committed in this case. This same question was involved in the case of Lazarus v. Phelps, 152 U. S. 81, 11 Sup. Ct. 477, 38 L. Ed. 363. The court, in construing a Texas statute similar to the statute under consideration, said:
“The object of the statute above cited is manifest. As there are, or were, in the state of Texas, as well as in the newer states of the West generally, vast areas of land over which, so long as the government owned them, cattle had been permitted to roam at will for pasturage, it was not thought proper, as the land was gradually taken up by individual proprietors, to change the custom of the country in that particular, and oblige cattle owners to incur the heavy expense of fencing their land, or be held as trespassers by reason of their cattle accidentally straying upon the land of others. It could never have been' intended, however, to authorize cattle owners deliberately to take possession of such lands and pasture their cattle upon them without making*368 compensation, particularly if this were done against the will of the owner, or under such circumstances as to show a deliberate intent to obtain the benefit of another’s pasturage. In other words, the trespass authorized, or condoned, was an. accidental trespass caused by straying cattle.”
In tbe course of the opinion the court quotes with approval the case of St. Louis Cattle Co. v. Taught, 1 Tex. Civ. App. 388, 390, 20 S. W. 855, 856, wherein it.is said:
“This doctrine, however, does not authorize the owner of cattle by affirmative conduct on his part to appropriate the use of such lands to his own benefit. He will not be permitted thus to ignore the truth that every one is entitled to the exclusive enjoyment of his own property. . . . The use and enjoyment of the property under such circumstances [by the wrongdoer] imports necessarily the idea of liability.”
In 2 Cyc. 398, the rule is tersely, and, as we think, correctly, stated in the following language: “The owner of cattle who wilfully turns them onto land of another without his consent is liable, without regard to the question of fences.” The following authorities also declare the same doctrine: 12 A. & E. Ency. Law (2d Ed.), 1045; Harrison v. Admanson, 16 Iowa 337, 41 N. W. 34; Delaney v. Errickson, 11 Neb. 533, 10 N. W. 451; Powers v. Kindt, 13 Kan. 74; Logan v. Gedney, 38 Cal. 579; Norton v. Young, 6 Colo. App. 187, 40 Pac. 156.
The contention that the trespasses complained of were not willful and intentional is not tenable, for the evidence shows conclusively that respondent and his' employees on several occasions before the trespasses were committed notified appellant to keep his sheep off the premises in question, and that appellant in utter disregard of the notices so given him wilfully and purposely drove his sheep on said premises, and kept, bedded, and pastured them there until they had eaten and destroyed much of the grass and herbage growing thereon. In fact, we think it may be fairly said that because of these willful and intentional intrusions by appellant with his sheep respondent was thereby, in effect, temporarily dispossessed of a large portion of his land. Hence it is idle
Appellant cites and relies upon the case of Buford et al. v. Houtz et al., 5 Utah 591, 18 Pac. 633; Id., 133 U. S. 320, 10 Sup. Ct. 305, 33 L. Ed. 618, in support of his contention that respondent, under the facts as disclosed by the record, is not entitled to recover, and that the judgment appealed from should be reversed. In that case the plaintiffs brought suit to enjoin the defendants from grazing their sheep on certain sections of arid land, barren, unimproved, and uninclosed, which plaintiffs had purchased from the Central Pacific Eailroad Company. The Supreme Court of the United States, in its statement of facts in the ease, observes :
“These lands were alternate sections of odd numbers according to the congressional grant to the railroad company, and they with the other tracts mentioned in the plaintiff’s bill are said to amount to over 350,000 acres. ... If we look at the condition of the owner-, ship of these lands, on which the plaintiffs rely for relief, we are still more impressed with the injustice of this attempt. A calculation of the area from which it is proposed to exclude the defendants by this injunction, under the allegation that it is forty miles in one direction and thirty-six in another, shows that it embraces 1,440 square miles, or 921,000 acres, all of which, as averred by the bill, is uninclosqd and unoccupied, except for grazing purposes. Of this 921,000 acres of land ’the plaintiffs only assert title to 350,000 acres; that is to say, being the owners of one-third of this entire body of land, which ownership attaches to different sections and quarter sections scattered through the whole body of it, they propose, by excluding the defendants to obtain a monopoly of the wAole traef, wMle iwo-thirds of it is public land belonging to the United States, in which the right of all parties to use it for grazing purposes, if any such right exists, is equal. The equity of this proceeding is something which we are not able to perceive. It seems to be founded upon the proposition that while they, as the owners of the 350,000 acres thus scattered through the whole area, are to be permitted for that reason to exercise the right of grazing their own cattle upon all the land embraced within these 1,440 square miles, the defendants cannot be permitted to use even the lands belonging to the United States, because in doing this their cattle will trespass upon the uninclosed lands of plaintiffs.”
The judgment of the court below is affirmed, with costs.