140 P. 757 | Utah | 1914
This is an action for trespass. It is alleged the defendant’s sheep and cattle, between March, 1910, and July, 1911, trespassed on the plaintiffs’ lands to! their damage. The defendant, in his answer, admitted “that at the times mentioned” in the complaint “he was the owner, in possession, and chargeable with the care and control of certain animals, to-wit, sheep and cattle,” and denied all the allegations of the complaint. The case was tried to the court.
He asserts the evidence is insufficient to show that the trespassing sheep and cattle were his, and that the court erroneously admitted evidence to prove ownership. One of the plaintiffs testified that in March, 1910, he saw a herder with the trespassing sheep and cattle. He was asked by his counsel: “Did you see any herder in charge of the stock up there during 1910 ? A. Yes; with the sheep. We went up to the camp where he was. Q. Did you make any inquiry of him as to whose herder he was, and whose stock those were ? A. Yes, sir. Q. What did he tell you ?” This was objected to as hearsay. The objection was overruled. “A. He came to meet us. We said to him, ‘Whose sheep are those ?’ He says, ‘Butterfield’s.’ ” The defendant also made a motion to strike the testimony. It also was denied. The witness further answered: “And the cattle was herding on the mountain also a little farther north. We said, ‘Whose cattle are those?’ He says, ‘They are Butter-field’s.’ ” This also was objected to, and a motion made to strike." Both were denied. “Q. In 1911 did you see any herder in charge of the stock there on the property? A. We met the herder of the sheep, and met him taking the sheep off the ground. Q. Did you have any conversation with him as to who he was herder for ? A. Yes. Q. And who the cattle and sheep belonged to? A. Yes, sir; Surbaugh and 1 both talked to him. Q. What did he tell you?” This, also, was objected to on the same ground. “A. Didn’t tell whose stock they were. He said Samuel Butter-field’s sheep.”
The other plaintiff was asked by his counsel: “Q. Did you see any herder in charge of the stock there ? A. Yes, sir. Q. Did you go and talk with him about the stock ? A. Yes, sir. Q. Did he tell you for whom he was herding, and who the stock belonged to ?” This was objected to on the same ground. Same ruling. “A. He told me they were Mr. Butterfield’s sheep; that he wás working for him; he was his herder. Q. Who did he say the cattle belonged
“Declarations of a party in possession of property made at the time of the transfer to him as to the nature of his possession”
are admissible. 16 Cyc. p. 1173,
“Claim as to ownership or rights by one in possession of personal property may he shown by relevant declarations, although they were not made under the declarant’s oath.”
Jones on Ev. (2d Ed.), Jones, Coin’s on Ev. 351,
“The declarations of persons in possession of personal property are often received as verbal acts characterizing and explaining the nature of such possession, that is, as a part of the res gestae.”
About all the cases cited to support the texts are cited by the latter, Jones, Corn’s on Ev. Neither the texts nor the cases support counsel’s contention. We think they are misconceived and misapplied. They relate to cases where the possession of the declarant, or the nature or character of his possession, was relevant and material; cases involving declarations of former owners in possession of chattels, or of those in privity, or identified in interest with one claiming under or through the declarant, or declarations showing motive, design, intent, or purpose with which the declarant in possession acquired, held, or transferred the property, or declarations of authorized agents or other representatives. No claim is here made of agency, former owner, privity, identity of interest,' or the like. When it is said the declarations of a former owner in possession of property, or of one identified in interest, or in privity with one claiming under or through him, or of an authorized agent, etc., are receivable, such declarations are received as being in the nature of admissions. But declarations of one in possession may also
“Declarations of persons in possession of personal property are often received as verbal acts characterizing and explaining the nature of such possession.”
But, as he and all the tests and cases say, where the nature and character of the possession of the declarant is material and relevant, and when such declarations tend to explain or characterize the nature of his possession, when the possession or the nature of the possession of the declarant is itself relevant and admissible, then his declaration explaining or characterizing such possession is also admissible. But here it is not made to appear wherein the possession or the nature of the possession of this tmdeseribed and unidentified herder, or the motive, design, intent, or purpose with which he acquired or held possession, was in any particular relevant or involved. It is clear the evidence here was adduced, not to explain or characterize the so-called herder’s possession, but to show ownership in another — in the defendant. “Whose sheep are those?” asked the plaintiffs of this stranger, the herder. I-Ie answered, “Butterfield’s — the defendant’s. “Whose cattle are those herding on the mountain side?” He answered, “Butterfield’s.” Is it possible, in an action between the defendant and another, each claiming ownership of the cattle, such gossip would be evidence of the defendant’s ownership ? In the next place, this stranger, this declarant, was not even shown to be a possessor. All that was shown in that respect was that whatever possession he had was not his possession but that of another. “Did you make any inquiry of him as to whose herder he was? Did he tell you for whom he was herding, and who the stock belonged to ?” were asked plaintiffs by their counsel. They answered the herder told them the stock belonged to Butter-field ; that he was working for him; that he was his herder.
The judgment is reversed, and the case remanded for a new trial. Costs to the appellant.