178 P. 480 | Idaho | 1918
This appeal is from ah order denying a motion for a new trial. The transcript does not contain the certificate required by rule 24 of the rules of practice of this court, showing what papers were submitted to the trial judge and by him used on the hearing of the motion. That rule is as follows:
“The transcript or record on appeal shall show that there is attached to or made a part of all orders made by the judge disposing of a motion for a new trial, or any other contested motion, a certificate substantially as follows, signed by the judge, clerk or attorneys, to wit:
“It is hereby certified that the following papers, to wit: . ... all of which are of the records or files in this case, were submitted to the judge and by him used on the hearing of the motion for a new trial (or any other contested motion), and constitute all the records, papers and files used or considered by said judge on such hearing. ’ ’
We have frequently held that, in the absence of such a certificate, an order denying a motion for a new trial, or other
The appeal is dismissed. Costs are awarded to the respondent.
ON APPLICATION TO REINSTATE APPEAL.
Appellant has made application, in the nature of a suggestion of diminution of the record, to reinstate this appeal, and has accompanied it by a sufficient showing and a proper certificate. The application has been granted and the case will be decided on its merits.
In the complaint filed by respondent seven causes of action are set forth. The jury rendered a verdict on only three of them and the others will be disregarded. These three causes are all with respect to damages mentioned in what is Known as the two-mile limit law (Rev. Codes, sees. 1217-1219), and
The specifications of error present two points for consideration : First, that the evidence is insufficient to justify the verdict or sustain the judgment; second, thát respondent is not entitled to damages because the range was embraced within a Carey Act segregation, during the years in question, and was therefore not public land, and that the statute granting a right of action of this kind is not intended to apply to lands which have been withdrawn from the public domain.
See. 1217 provides: “It is not lawful for any person owning or having charge of sheep to herd the same, or permit them to be herded, on the land or possessory claims of other persons, or to herd the same or permit them to graze within two miles of the dwelling house of the owner or owners of such possessory claim.” Sec. 1218 gives to any party injured a right of action for damages against the owner of sheep for a violation of the provisions of the former section.
It will be observed that no reference is made in the statute to either public lands or public domain. The act of herding sheep within two miles of the dwelling-house of another is the thing prohibited and for which an action for damages suffered by the injured party is provided. The law was not intended to prevent a sheep owner from grazing them upon his own land, although situated within two miles of the dwelling-house of another (Sweet v. Ballentyne, 8 Ida. 431, 69 Pac. 995), but was intended to prevent the herding of sheep on the range within such limit, whether that be upon public lands, public domain, or unoccupied, uninclosed private lands not the property of the owner of the sheep. It is immaterial, and not necessary to decide in this case, whether or not the un
Damages are not allowed to respondent in this case on the theory that he owns the grass growing on the range, but as compensation for loss actually sustained as a direct result of sheep grazing off and destroying, within two miles of his dwelling-house, pasturage which, in reasonable probability, his stock would have fed upon had it not been so grazed off and destroyed. (Chandler v. Little, 30 Ida. 119, 163 Pac. 299.)
The evidence has been carefully examined and found to be sufficient to justify the jury in concluding that respondent would have had the benefit of the range within his two-mile limit had it not been destroyed by appellant’s sheep, and to sustain the verdict and judgment in the amount recovered.
The order overruling the motion for a new trial is affirmed. Costs are awarded to respondent.