99 P. 660 | Utah | 1909
This is an action for damages to personal property. Respondent, in substance, for a first cause of action, alleged that during the year 1906 he was the owner and in possession of certain grazing'lands, describing them; that during the year 1906 he was the owner of a large number of sheep, including about 1,400 ewes, all of which were herded or kept upon the lands aforesaid; that during the month of September, 1906, the appellant, as the owner, was in charge and control of about 500 buck sheep, which said appellant wrongfully, willfully, and negligently permitted to enter upon said grazing land and permitted them to mingle with respondent’s ewe sheep, by reason of which 234 head of said ewes became pregnant and “brought forth lambs of an inferior quality and in’ am unseasonable period, late or premature,” to the damage of respondent in the sum of $900. For a second cause of action it is in substance alleged that during the months of August and September, 1906, the appellant wrongfully, willfully, and negligently permitted a, large number of the buck sheep mentioned in the first cause of action
If w'e should assume tbe power to review. tbe action of tbe trial court in granting a new trial (a question we do not decide), yet, in view of tbe record in this case, there is nothing before us upon which we can base an intelligent review. There is nothing before us except tbe verdict and tbe motion for a new trial. There may have been several reasons which induced the court to grant a -new trial.
The first assignment of error relates to the ruling of the court in admitting in evidence, over appellant’s objection, a certain written instrument which was offered for the purpose of proving respondent’s right to the possession of the grazing lands referred to in the complaint. The instrument in question purported to be a contract between the State of Utah and one Cravens, whereby the State of Utah agreed 'to sell, and said Cravens agreed to purchase, the lands in question at a stipulated price per acre, the purchase being made-in accordance with the laws of this State relative to the sale of lands granted by the United States to the' State of Utah: by the enabling act approved July 16, 1894, c. 138, 28 St at. 107. Mr. Cravens assigned all of his rights under said contract to respondent, and we’shall hereafter treat the matter-as though respondent had been the original purchaser under said contract. Pursuant to said contract respondent paid or deposited with the proper officer of the State the first payment, amounting to twenty-five cents per acre, and went into-possession of and occupied the lands in question for the purposes aforesaid. The lands in question had been selected' by the State of Utah prior to entering into the contract of sale as a part of the lands due the state under the grant contained in the enabling act. The selection of lands by the-state, within which the lands in question were included, was filed in the United States land office on May 27, 1902, and approved by said office June 9, 1902. Thereafter, on September 27, 1906, the lands in question, selected by the State as aforesaid, were rejected by the Secretary of the Interior-at Washington, which rejection , was indorsed on the back of the contract in question. Both the State of Utah and the respondent consented to the rejection, and the state re-' turned to him the money deposited by him, and he received' it and relinquished his right to the land. The precise time-at which the State and respondent were apprised of the ae
But we think: the respondent had the right of possession -as against the appellant, who was a mere intruder, upon still another ground. Tinder the enabling act the state certainly had the exclusive right to select unoccupied and unclaimed non-mineral lands. The right of selection carried with it the right to take possession and to continue in such possession, at least until some one with a better right claimed the lands, or until they were found to be
The next assignment to be noticed refers to the admission of certain evidence, over the objection of appellant, with regard to particular items of damages which -respondent claims to have sustained by reason of the wrongful acts complained of in the first cause of action. In • the complaint
Error is also predicated upon tbe ruling of tbe court in admitting in evidence, over tbe objection of appellant, tbe following letter written by him to respondent just before this action was commenced and pending tbe negotiations for a settlement between them: “In reply to yours of tbe 13th, will say have agreed to give you two hundred dollars more, besides tbe yearling ewes. Now, Mr. McKinney, this will be every cent I will give you. Now, if this will not pay you tbe damages, you bad better start suit. If you want tbe money, will send you check.” Counsel for appellant urge that this letter was in tbe nature of a privileged communication, because it was written, pending •the controversy, and was a mere offer of a stated sum of
The giving of the instruction relative to the measure of damages is also assigned as error. The instruction complained of, in view of the State of the pleadings, is too broad. In any case predicated upon a wrong a party may be entitled to recover (1) general damages and (2) special damages. The former are such as are the necessary and usual results of the acts complained of, and the latter are
Another assignment of error is that the,court erred in refusing to give certain instructions requested by respondent. In his answer appellant pleaded a settlement in the nature of accord and satisfaction. Appellant introduced' some evidence at the trial in support of this defense, and respondent also introduced some in • opposition thereto. Appellant offered certain requests upon this issue which the court refused. The appellant excepted, and now urges that the court erred in refusing his requests. Appellant had the undoubted right to have the court instruct the jury with regard to the law upon every
The assignment with regard to the refusal of the court to instruct, the jury upon the question of respondent’s rights under the contract of purchase, we have, in effect, disposed of by what we have said upon that subject, and it therefore requires no further attention. The court did not err in refusing this request.
It follows from what has been said that the judgment should be, and it accordingly is, reversed, and the cause is remanded for a new trial with directions to' the court to permit the parties to amend their pleadings if they so desire, and to proceed with the case in accordance with the views herein expressed; appellant to recover costs on appeal.