39 Colo. 270 | Colo. | 1907
delivered the opinion of the court:
Appellee, as plaintiff, brought an action against appellants, as defendants, to recover damages resulting from the wrongful driving of cattle belonging to the plaintiff. There was judgment for plaintiff, from which the defendants appeal.
It appears from the pleadings and testimony that the parties to this action each owned, or had leased, in severalty, several thousand acres of land. For the most part these lands were alternate sections, the intervening sections being government land. The major part of the lands of plaintiff were north of Bijou creek, while the greater part of the lands of defendants were south of this stream. The lands of both parties were adjacent to each other except as separated by that belonging to the government; or, perhaps, more accurately speaking, were in the same general territory, with the principal holdings divided by Bijou creek, the different tracts of each being mostly separated by intervening alternate sections belonging to the government. Both parties were engaged in the business of keeping- and raising cattle upon their respective lands and upon those adjacent, belonging to the United States. With a few exceptions which will be noted later, none
The important question presented at the outset is, whether the defendants had the right to do so, it being contended on their behalf that they had, provided that in driving the cattle of plaintiff, reasonable care was exercised to prevent injury to them. An instruction to this effect was requested on behalf of the defendants, and refused. There was no error in this refusal. There is an implied license that the public lands of the United States shall be free to the people who seek to use them for the purpose of grazing stock, so long as the government does not forbid such use. To protect this use, Congress, in 1885, passed an Act the purpose of which was to prevent parties from monopolizing any part of the public domain. — 23 U. S. 321-322. Our state laws bearing on the subject indicate the same policy. The privilege of grazing stock upon the public lands cannot be monopolized by any one, directly or indirectly, or under claim that he is but protecting his own lands.—Buford v. Houtz, 133 U. S. 320; Taylor v. Buford, 8 Utah 112; Martin v. Platte Valley Sheep Co., 76 Pac. (Wyo.) 571.
■ And hence, the law does not recognize that the owner of uninclosed lands has any right to prevent such use of the public domain under claim that thereby he is protecting his own land. Were the law otherwise, ownership of a piece of land would enable the owner, under the guise of a right to prevent cattle grazing upon his land, to practically control a large area by driving such a distance as 'would be necessary to prevent their return to his land.
The complaint consisted of two counts — the first, under the common law, for negligently, wrongfully, and maliciously driving the cattle of the plaintiff; the second, under the statute, which provides, in
The jury returned a verdict under the second count, and we will now consider the errors assigned on the refusal of the court to give other instructions requested. An instruction was refused to the effect that the statutes above referred to were highly penal in their nature, -and that before the plaintiff could recover under these statutes, it was necessary for him to clearly prove that the defendants had actually violated the terms thereof. Whether or not this instruction correctly stated the law, as a general proposition, is not involved in this case. The defendants admitted that they had, or had caused, the cattle of the plaintiff to be willfully driven. It is undisputed that the vicinity from which they were driven was their usual range, and had been used and occupied by the plaintiffs for the purpose of keeping and raising cattle for more than twenty years; so that it was not necessary to instruct the jury, whatever might be the rule ordinarily, as to the quantum of proof which' was required on the part of the plaintiff, to establish the fact that the defendants had willfully driven his cattle from their usual range.
Error is also assigned upon the refusal of the court to give an instruction defining the meaning of the word “range.” In the circumstances of this case, there was no error in such refusal, for the reason, as above stated, that the testimony is undisputed that the government lands from which the cattle of plaintiff were driven by the defendants, was the usual range of such cattle. It is urged the testimony discloses that the range of plaintiff’s cattle
An instruction was also requested to the effect that .lands which are the subject o'f private ownership do not .constitute a cattle range within the meaning of the law against the expressed will of the owner. We do not see how the refusal of this instruction could have in any manner prejudiced the defendants. There was no claim on the part of the plaintiff that be bad the right to pasture his cattle on lands belonging to the defendants.
There was requested on the part of the defendants an instruction to the effect that they would not be liable to the plaintiff for driving his cattle off their private lands, if they did so without any unnecessary injury to such cattle. This was probably a correct statement of the law, but it appears from the instructions given that this proposition was clearly covered.
There were a number of other instructions requested and refused, which we do not deem it necessary to notice in detail. They -are either disposed
The defendants filed a cross-complaint by which they claimed they had been damaged through the plaintiff willfully and repeatedly turning his cattle upon their lands. The court withdrew from the consideration of the jury the claim for damages, as alleged in this cross-complaint. This was not error, because there was no testimony to sustain its averments. The plaintiff drove, upon lands belonging to himself, a number of his own cattle. These lands adjoined those of the defendants. The lands of both were within the same general inclosure, but there was no fence, or other barrier, between them, and the cattle wandered upon the lands of the defendants and depastured the same. This was not sufficient to establish a cause of action in favor of the defendants and against the plaintiff, because it was not tantamount to a willful driving of his cattle upon the lands of the defendants. One who* turns his cattle out to graze, unrestrained, upon lands where he has a right to turn them, knowing that they will probably wander on the uninclosed premises of another, is under no obligation to prevent them entering upon such premises, and if they do so enter through following their natural instincts, he is not
In Cosgriff v. Miller, 68 Pac. (Wyo.) 206, it was held that where stock is driven intentionally and persistently upon the uninclosed lands of another against his will, a trespass occurs for which he may recover.
In Lazarus v. Phelps, 152 U. S. 81, it was held that if the owner of land stock it with a greater number of cattle then it could properly support, so that, in order to obtain a proper amount of grass, they would be forced to stray upon the adjoining
The case at bar does not fall within the rule announced in either of these cases. There was no testimony which justified the submission of any such questions to the jury.
Error is assigned upon the action of the court in striking from instructions tendered on behalf of the defendants parts thereof, and as thus modified, given, to the effect that it was proper for the jury to consider whether or not the defendants, before driving the cattle of plaintiff, in good faith took legal advice and were governed thereby in what they did. This is not an action to recover exemplary, but for actual damages only. True, under the second count judgment is demanded for the penalty allowed by the statute, but this penalty can only be determined by the actual damages sustained. 'Advice of counsel does not bar an action, nor is it any defense to one for actual damages caused by a wrongful act, but is limited to mitigation of vindictive damages sought to be recovered.—Cochran v. Tuttle, 75 Ill. 361.
Error is also predicated upon an instruction by which the jury were, advised that the term “maliciously,” as used in the statute upon which the second count is based, did not necessarily mean ill-will towards the plaintiff, and that if it appeared from the evidence that the defendants willfully drove the cattle of plaintiff off public domain, which was their usual range, that they might infer that such driving was done maliciously. Maliciously, as used in the statute, means a wrongful act done intentionally, without just cause or excuse ; and so, if the defendants willfully drove the cattle of plaintiff off such portion of the public domain as was their usual
Other instructions given are also challenged, which it is not necessary to take up in detail, as the questions raised are disposed of in passing upon those considered.
Error is assigned on the rulings of the court on the reception and rejection of testimony. The two main questions in the case were, first, the driving of plaintiff’s cattle from their usual range by defendants ; and second, the damage to plaintiff as the result of such driving. The defendants admitted the driving, and even if the court erred in admitting or rejecting testimony tending to prove that defendants did drive the cattle, it was not prejudicial. A party cannot successfully complain of the admission or rejection of testimony which tends to prove an act that he himself admits he committed. With respect to the second proposition, we do not think the court committed prejudicial error in the reception or exclusion of testimony bearing-on the subject of damages.
The final error assigned relates to the judgment. The jury returned a verdict under the second count, assessing the damages of plaintiff .at the sum of $550. On this verdict the court rendered a judgment for $1,650.00 — three times the amount of the damages assessed. Where a statute allows the successful party to recover a sum which is determined by multiplying the actual damages sustained a specified number of times, it is immaterial whether the jury return in their verdict the sum which the plaintiff is entitled to recover by virtue of the statute, or whether they return the actual damages, and the court directs the judgment to be entered in accordance with the statute. It must be certain, however, that the jury returned a verdict for the actual dam
On the motion for a new trial, an affidavit of a juror was introduced which stated, in effect, that it was not the intention of the jury to find for the plaintiff under the second count, but under the first. It is well settled that the affidavit of a juror cannot be received to impeach a, verdict.
The judgment of the district court is affirmed.
Affirmed.
Chief Justice Steele and Mr. Justice Campbell concur.