27 Kan. 134 | Kan. | 1882
The defendant in error (plaintiff below) commenced an action against plaintiff in error (defendant below), before a justice of the peace. His bill of particulars stated substantially that he owned and was in the actual possession of certain inclosed lands; that the railway company constructed its railroad across the same, and failed and neglected to put in cattle-guards where the road entered and left his premises; that by reason thereof large numbers of cattle and other animals entered said premises at the places where the railroad entered and left the same, and damaged his growing crops in the sum of $250; that during all this time the defendant, in trying to prevent the destruction of his crops, drove out the stock and herded them from said lands, and averred his services were worth $50; and he therefore claimed judgment for $300. He recovered judgment before the justice for $282.50, the railway company not appearing. An appeal was taken to the district court by the railway company, and the cause came on for trial at the August term, 1881. -Judgment having been rendered against the railway company for $157.50 and costs, the latter duly excepted, and brings the case here.
It is first objected that the district court had no jurisdiction, on the ground that the justice before whom the bill of particulars was filed.'was without jurisdiction, as it is urged that the action was one of trespass to real estate, and the amount claimed exceeded $100. It is certainly clear that under §6, ch. 81, Comp. Laws 1879, justices have jurisdiction in actions for trespass on real estate only where the damages demanded do not exceed $100. But we do' not think the bill of particulars shows that the action is for trespass to real estate within the terms of § 6. Trespass therein mentioned is the common-law trespass, or trespass denominated quare clausum fregit. This is the name of a remedy which lies to recover damages when the defendant has unlawfully and wrongfully trespassed upon the real estate of the
The second objection is, that several causes are improperly joined. The bill of particulars substantially charges that, to avoid further damages, plaintiff below drove out the stock and herded them, at a cost of $50. We do not think' this objection tenable. The owner of the crops, upon ascertaining that injuries were being done thereto by the cattle and other animals which had entered at the places where the railway company had failed to erect suitable cattle-guards, was bound to use at once proper diligence to prevent further injuries to his crops. The plaintiff below had the right to bring his action upon the whole case to recover the damages-for all the injuries resulting from the negligence of the railway company; and in this case these damages included his-claim for his services in preventing a greater destruction to his crops. There was no impropriety in adjusting the whole claim in one controversy. In the case of Tightmeyer v. Mongold, 20 Kas. 90, referred to, the party attempted to waive the tort and sue upon contract. We held in that case that-
The judgment of the district court will be affirmed.
