117 P. 70 | Utah | 1911
The appellant, plaintiff below, in Ms complaint alleged' that he-was the owner and in possession of certain described real estate, and that the defendants’ cattle trespassed upon the land, and “ate up, injured, and destroyed the lucerne seed, hay, and verdure being upon and grazed upon said land,” to plaintiff’s damage in the sum of $400. Defendants filed a general denial.
The evidence shows that one Erastus Hanson owned the land and lived on it, and harvested lucerne seed from it. This seed' was sold by Hanson to plaintiff. On account of rains, the seed being too damp to thresh, it
At the conclusion of plaintiff’s evidence, the court granted a nonsuit on the alleged ground of insufficiency of evidence to show' that the defendants’ cattle committed the trespass or destroyed the seed, and especially upon the ground of insufficiency of evidence to show negligence on the part of the defendants in permitting the cattle to enter the premises in question,' or to eat or injure the seed.
Because plaintiff did not own the land, and as is urged, had no interest in it, except- a mere license to enter and remove the seed, it is contended that he could not maintain an action of trespass to realty; that he could not maintain an action of trespass to personal property, that being, as is asserted, all in which he had any interest, without alleging and proving negligence; and as there are neither allegations nor proof of negligence the nonsuit, as is asserted by respondents, was properly granted. As already' observed, there is sufficient evidence to show that defendants’ cattle entered the field, and ate and injured the seed. It seems that the court granted the nonsuit on the theory of a want of allegations and inoof of negligence. We think the law was misapplied. We have a statute (Comp. Laws 1907, section 20) which provides that if any cattle, etc., shall trespass or do damage upon the premises of another person, except in cases where such premises are not inclosed by a lawful fence, in counties where a fence is required by law, the aggrieved party, whether he be the owner or an occupant of such premises, may recover damages for the injury sustained by him by an action at law against the owner of the trespassing animals. TJnder this statute, we think the plaintiff w'as such an “occupant” of the premises as to entitle him to recover damages for the injury done to the seed by trespassing animals, without alleging and proving negligence.
Personal property, as well as real estate, may be the subject of trespass. (28 Am. & Eng. Ency. L. (2d Ed.), 589.) The statute seems to contemplate that an owner or occupant
The judgment of the court below is reversed, with directions to grant .a new trial. Costs to appellant.
