122 P. 901 | Wyo. | 1912
This is a suit brought to recover damages for an alleged trespass upon lands described in the petition. The trial court directed a verdict for the defendant, and the case is here on error. The suit was brought by Noble & Carmody, a partnership, in the firm name, as authorized by section 4329, Compiled Statutes (R. S. 1899, sec. 3485), which provides that a partnership formed for the purpose of carrying on trade or business in this state, or holding property therein, may sue or be sued by the partnership name, without alleging or proving the names of the individual members thereof.
It is alleged that the trespass was committed on or about June 1, 1907, and thence continuously during the months of June, July and August, 1907, and that the defendant, “with force and arms broke and entered upon the premises, * * * trod down and trampled upon and spoiled the grasses and herbage of the plaintiff then and there being, and with live stock, to-wit: more than two thousand head of sheep depastured the grasses and herbage of the plaintiff then and there growing,” of the value of more than two-thousand dollars, to the damage of the plaintiff in that amount. There is a further allegation of injury and damage to the effect that the sheep of defendant by reason of the alleged trespass became mixed with the sheep of plaintiff, whereby the plaintiff was damaged in the sum of $2,000.
The only points we think necessary to consider relate to the Earle lands. The court excluded from the evidence the written lease of those lands, and sustained a motion of defendant’s counsel to strike out all of the testimony relating to such lands, and also an objection to an offer.made by plaintiff’s counsel to prove by John Carmody, the principal witness for the plaintiff then on the stand, that the lands described in said written lease were leased by the plaintiff from Edson A. Earle for the sole and exclusive use of the plaintiff, Noble & Carmody, upon which to graze their herds, and that in pursuance thereof the plaintiff, Noble & Car-mody, had possession of said lands for that purpose in 1907, and paid the rent therefor, two hundred dollars. Upon the face of the lease aforesaid it appeared to have been made by Edson A. Earle to “Fred E. Noble and John Carmody, co-partners, doing business under the firm name of Noble & Carmody,” for the term of one year from October 1, 1906, in consideration of the acknowledged payment of two hundred dollars, and it covered the lands alleged in the peti
The admission of the lease in evidence was objected to-on the ground that it was not made to the parties in the case. And upon substantially the same ground the testimony referring to the Earle lands was stricken out, and the offer of proof excluded. The rulings of the court rejecting the lease and offer of proof relating to the Earle lands, and striking out the testimony referring thereto, are assigned as error. The ruling sustaining the objection to the admission of the lease in evidence was not excepted to, and it was not again offered. For .that reason it is contended by counsel for defendant that the plaintiff is not now in a position to complain of any of said rulings. The testimony stricken out included that of the witness Carmody stating that the plaintiff had possession of the lands at the time of the alleged trespass, and relating the transaction concerning the lease: His testimony as to that transaction was given upon cross-examination in answer to a question inquiring how he got possession and the right to posession, and was as follows:
“In the fall of 1906, I bought all of the sheep that Mr. Earle had left. At the time I bought the sheep I asked him if he would lease me what range lands he had. He said he would. I said, ‘What do you ask for them?’ He said, ‘Two hundred dollars,’ and so I said, ‘All right.’ When I paid him for the sheep I included the two hundred dollars in the check. When I paid for the sheep he said, ‘When I*233 come down I will make you out a lease.’ And he did.” On re-direct examination he testified that he bought the sheep for the plaintiff, Noble & Carmody, and when a question was propounded stating that counsel understood him to say that he had leased the lands for Noble & Carmody, he explained : “I said that after I had bought the sheep I asked Mr. Earle if he would lease me his range lands, and he said he would. Ever since we have entered into the sheep business I have done all of the business and attended to it in every way, and I have got into the habit of saying ‘I’ instead of ‘we,’ because there is no one else does any business for Noble & Carmody; and with that understanding I don’t want to be tripped up on that word.”
After the witness had stated during his cross-examination that the lease under which the plaintiff had possession and claimed the right of possession was the one he had previously identified, that lease, which was then in the case only as a paper marked for identification, was handed to him by defendant’s counsel and he was asked to look at it and state who were the parties to the lease according to its terms. He did so, and thereupon said counsel moved to strike out all the testimony referring to the lands covered by such lease, for the reason that other persons not named in the lease were shown by the evidence to have been members of the plaintiff partnership, and that such testimony in reference to possession was, therefore, incompetent, irrelevant and immaterial, and not the best evidence. The motion was sustained, and the ruling excepted to by counsel for plaintiff. Thus the court appears to have held that because the written lease named as lessees only two of the members of the partnership, it was incompetent as proof of a right of possession in the plaintiff, and also that it prevented the plaintiff from proving that the partnership had actual possession of the lands described in the lease.
Plaintiff’s counsel then offered to prove that the plaintiff leased the lands from Earle for their sole and exclusive use for the grazing of their herds and paid the rent therefor.
It was evidently intended by the question inquiring as to the purpose for which the lands were leased to show that
The gist of the action of trespass is injury to possession, and the plaintiff must show either possession or a right to take immediate possession at the time of the trespass. In other words, the plaintiff must have had actual or constructive possession. Possession alone is sufficient to maintain the action against one having no better title, and where there is actual possession it is not necessary to show any other or better title against a mere wrongdoer. Where the plaintiff’s actual possession is admitted or proven, a mere intruder cannot require the plaintiff to prove his title or right to possession; and this is so although the plaintiff may have alleged that he was the owner as well as in possession of the property. Where the plaintiff did not have actual possession he may recover by showing a title sufficient to give him constructive possession of the land. (28 Am. & Eng. Ency. Law, 552, 573; 38 Cyc. 1004, 1005, 1017-1020; Illinois &c. Co. v. Cobb, 94 Ill. 55; Prussner v. Brady, 136 Ill. App. 395; Mallett v. White, 52 Conn. 50; Clay v. St. Albans, 43 W. Va. 539, 27 S. E. 368, 64 Am. St. 883; Chicago &c. R. Co. v. McPhillamey, 118 Pac. 682; Gustin v. Harting, 121 Pac. 522.)
It was well said in Illinois &c. Co. v. Cobb, supra: “Being in possession the law presumes him to be the owner, and will not permit a wrongdoer to question or call upon him to produce his title to sustain his action. * * * * * To hold that a wrongdoer may put a plaintiff in peaceable possession upon the proof of title, to enable him to a recovery, would be a harsh rule. If there should be any technical objection to any link in his chain of title he would fail, although no other person was claiming title and might never
It is said that “one having the equitable title, with full right to call for the legal title, may maintain trespass.” (28 Am. & Eng. Ency. E. 580.) And many decisions in this country so hold, especially where the holder of the equitable title is shown to have had the right of possession, as where a deed is made to one for the sole use and benefit of another. In such a case the right of the equitable owner or beneficiary to maintain the action cannot, we think, be reasonably denied, and it is sustained by many well considered cases. Of course, if such equitable owner or the one for whose use and benefit a conveyance is taken has actual possession of the premises there can be no question as to the right to maintain the action, at least for such an injury as is here alleged. (Clay v. St. Albans, supra; Morse v. Iman, 42 Ill. 150, 89 Am. Dec. 417; Dexter v. Billings, 110 Pa. St. 135, 1 Atl. 180; McCarty v. Gray, 95 Ill. App. 559; Bulliss v. C. M. & St. P. Ry. Co., 76 Ia. 680, 39 N. W. 245; Albin v. Lord, 39 N. H. 196; Frisbee v. Marshall, 122 N. C. 760, 30 S. E. 21; Brown v. Benjamin, 8 Allen (Mass.) 197; Cox v. Walker, 26 Me. 504; Gartner v. Chicago &c. R. Co., 71 Neb. 444, 98 N. W. 1052; Mallett v. White, supra; Foster Lumber Co. v. Arkansas &c. R. Co., 20 Okla. 593, 95 Pac. 224, 100 Pac. 1100, 30 L. R. A. (N. S.) 231; Russell v. Meyer, 7 N. Dak. 335, 75 N. W. 262, 47 L. R. A. 637.)
The facts in the case at bar are substantially the same as in Painter & Co. v. Stahley Bros., 15 Wyo. 510, 90 Pac. 375. The only difference is that in that case it was alleged that
It was alleged that the plaintiff was in possession of the premises at the time of the alleged trespass and the evidence which was stricken out tended to support that allegation. Mr. Carmody was not cross-examined as to the character or the facts of the plaintiff’s possession, except that he was asked if the lands were fenced or the corners marked by posts or stakes. He answered that they were not. Clearly the fact that the lands were not fenced and that the corners were not marked by posts or stakes would not authorize the court to say as a matter of law that actual possession was not established. Nor was it proper to strike out the testi
The evidence of the witness Carmody relating his transaction with Mr. Earle respecting the purchase of the sheep and the leasing of the lands at least tended to show that he arranged for the lease and paid the rent on behalf of and for the firm, and that testimony in connection with the fact that the plaintiff had possession of the land would have been sufficient for submission to the jury to determine whether the plaintiff had a'right to possession, if that question became material. And the fact that the lease was in writing did not make the proof of the circumstances under which it was taken and held incompetent. In our view of the case, therefore, the plaintiff should have been permitted to show that the land was leased for the sole and exclusive use and benefit of the plaintiff partnership, and that the partnership had paid the rent and had possession. After that showing, if not before, the lease would have been admissible. But proof of such facts would have been competent in connection with an offer of the lease, and was competent when the offer of such proof was made, notwithstanding what had appeared as to the names of the’lessees written in the lease. It is unnecessary to consider the questions raised as to the alleged trespass upon the other lands described in the petition. We think the court erred in the rulings above mentioned, and’