Kirk v. Madareita

184 P. 225 | Idaho | 1919

REDDOCH, District Judge.

This action was commenced by respondent to recover damages under the two-mile limit law (C. L., secs. 1217-1219). The case was tried to a jury resulting in a verdict for respondent, upon which judgment was entered for $100. Appellants moved for a new trial, which was denied, and this appeal is from the order denying the motion for a new trial, and also from the judgment.

The specifications of error are as follows: First, insufficiency of the evidence to justify the verdict; second, said verdict is against law, and, third, errors in law occurring at the trial. The first and second specifications may 'be considered together. The complaint alleges that respondent was the owner of certain lands, and was residing in a dwelling-house owned by him situate thereon; that he was the owner of thirty head of cattle and several head of horses; that it was necessary for him to have the grass near and within two miles of his dwelling; that appellants were the owners, in possession of, and chargeable with certain sheep; that between March 20, 1915, and April 25, 1915, said sheep were allowed to graze within two miles of said dwelling-house; that the grass and pasture in the vicinity of plaintiff’s premises and within two miles thereof was totally destroyed, and that during said time said sheep were a constant bother, damage and annoyance to respondent, to his damage in the sum of $275.

The testimony shows that respondent was, at the times alleged, residing on the lands owned by him; adjoining it there was unappropriated public domain; that he also at the same time was the owner of about thirty head of cattle, and about eight head of horses; that appellants’ sheep, about five thousand in number, were herded or permitted to graze on the public unappropriated lands within two miles of his dwelling. With this as a foundation, respondent and certain of his witnesses, over appellants’ objections, were permitted to state the amount of damage which respondent sustained, as follows: Respondent stated his damage was $375, but ’that he only claimed damage in the sum of $275. Mrs. Kirk estimated the damage at $275, and Ben Rice estimated the damage at $250. Upon cross-examination, respondent gave the basis of his estimate as follows: ‘ ‘ The only way I could place my damage was at the time I put running after my stock, the damage to „my stock, and the damage to the range.” The witness Ben Rice gave the basis of his estimate as follows: “Upon the grass that was damaged that was inside two miles of his place.” Mrs. Kirk furnished no basis for her estimate.

This, in substance, was the evidence upon which the jury returned its verdict. We fail to see how it could intelligently arrive at any stated amount. The evidence did not disclose the extent or area over which the grass was eaten or destroyed, or that respondent required the grass so eaten or destroyed for his stock, or that his stock would probably have secured the grass, or that there was not sufficient grass or pasturage left for his stock after the sheep had been there, or that the grass was not, in fact, eaten by other stock which had an equal right with respondent’s to be there; no evidence as to the nature or character of the damage to respondent’s stock, or the value of the range per month or otherwise for each head of such stock. It is contended that respondent could only recover general damages under his complaint, and that there was no competent evidence of such damage. The .plaintiff .is entitled to recover the actual damage sustained by reason of the loss or injury to the range caused by trespassing sheep. (Roseborough v. Whittington, 15 Ida. 100, 96 Pac. 437; Chandler v. Little, 30 Ida. 119, 163 Pac. 299; Smith v. Benson, ante, p. 99, 178 Pac. 480; Fleming v. Benson, ante, p. 103, 178 Pac. 482.)

Under the facts disclosed by the record, it was error for the court to permit the witnesses to give lump- sum estimates of the damage. (McGuire v. Post Falls Lbr. & Mfg. Co., 23 Ida. 608, 131 Pac. 654; Pacific Livestock Co. v. Murray, 45 Or. 103, 76 Pac. 1079; Hatch Bros. Co. v. Black, 25 Wyo. 109, 165 Pac. 518; 4 Ency. Ev. 12.)

Evidence was admitted over appellants’ objection to the effect that respondent and his wife spent considerable time in driving or herding their stock on the range by reason of the trespass. It is contended that this is special damage, and as the same was not alleged in the complaint the evidence should not have been received. Special damages are defined in 17 C. J., 715, as follows: “Special, as contradistinguished from general, damages are those which are the natural, but not the necessary, consequence of the act complained of. ’ ’ It does not necessarily follow that the respondent would have to herd or look after his stock, as the natural consequence of the trespass. It was error to permit this evidence, as there was no allegation in the complaint upon which to base it: Special damages should be pleaded. (Lee v. Boise Development Co., 21 Ida. 461, 122 Pac. 851; Sommerville v. Idaho Irr. Co., 21 Ida. 546, 128 Pac. 302; Henderson v. Coleman, 19 Wyo. 183, 115 Pac 439, 1136, 17 C. J. 1002.)

Under the statutes in question, the party committing the trespass is liable for all damages sustained, but the complaint should be sufficiently specific to apprise the defendant of the nature and elements of the damage claimed.

The judgment and order denying appellants’ motion for a new trial are reversed. Costs awarded to appellants.

Morgan, C. J., and Eice, J., concur.