191 P. 1063 | Nev. | 1920
By the Court,
This action was originally brought in the justice court of Union township, county of Humboldt, State of Nevada, to recover $200 damages for grazing sheep upon the lands alleged to be owned by respondent. An attorney fee in the sum of $250 is demanded in the complaint. In regard to the ownership and possession of the lands, it is alleged in the complaint as follows:
“That during all the times hereinafter mentioned the said plaintiff was, and now is, the owner, and lawfully in the possession, of that certain tract of land situated in the county of Humboldt, State of Nevada.”
Then follows a particular description of the land by legal subdivisions. The complaint is not verified, and the answer, which in the main consists of denials as to the ownership and possession of the lands, damage sustained, the right of respondent to recover an attorney fee, and the reasonableness thereof as alleged in the complaint, is also unverified. The justice of the peace, being of the opinion that under the state of the pleadings a question as to the title of real estate was involved, certified the case to the district court for trial. In the district court the trial before a jury resulted in a verdict for respondent in the sum of $200 damages, and the court thereafter, on motion, fixed respondent’s attorney fee in the sum of $250, and entered judgment against appellants and in favor of respondent for said
This appeal is taken from the judgment and order denying appellants’ motion for a new trial, from the order of the court denying their motion to strike the cost bill, and also from the order denying their motion to strike from said cost bill the item “attorney fees,” fixed by the court at $250.
Appellants contend that the district court had no jurisdiction of the subject-matter of the action, for the reason that no verified answer had been filed with the justice of the peace. Section 5721 of the Revised Laws of Nevada, under which this claim of want of jurisdiction is made, reads:
“The parties to an action in a justice court cannot give evidence upon any question which involves the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine; nor can any issue presenting such question be tried by such court; and if it appear from the plaintiff’s own showing on the trial, or from the answer of the defendant, verified by his oath, that the determination of the action will necessarily involve the question of title or possession to real property, or the legality of any tax, impost, assessment, toll, or municipal fine, the justice must suspend all further proceedings in the action and certify the pleadings, and if any of the proceedings are oral, a transcript of the same, from his docket to the clerk of the district court of the county; and from the time of filing such pleadings or transcript with the clerk, the district court shall have over the action the same jurisdiction as if it had been commenced therein. * * * ”
This statute received consideration in In Re Dixon, 40 Nev. 228, 161 Pac. 737, and the jurisdictional question involved here was in that case determined adversely to appellant’s contention. It was there held, in effect, that in an action instituted in a justice court an unverified pleading of a defendant, raising an issue as to the legality of a tax and the constitutionality of the law
As declared by the court in King v. Kutner-Goldstein Co., 135 Cal. 65, 67 Pac. 10, in regard to a statute identical in almost every respect to section 5721:
“It must be deemed an elementary principle that the facts, and not the verified answer, constitute the final test of jurisdiction upon any cause of action inaugurated in a justice court.”
Appellants insist that respondent’s title to the lands involved is not sufficient in law to enable him to maintain this action. Section 1, defining the character of title contemplated by the act in question, provides as follows:
“It shall be unlawful for any person or persons to*184 herd or graze any live stock upon the lands of another without first having obtained the consent of the owner or owners of the land so to do; provided, that the person claiming to be the owner of said lands has the legal title thereto, or an application to purchase the same, with first payment made thereon.” Rev. Laws, 2335.
The record discloses that on the trial of the case respondent prqved that the Central Pacific Railway Company was, on the 18th day of October, 1918, the owner in fee simple of all the lands described in the complaint, and on that date, for a valuable consideration, entered into a lease with respondent, by virtue of which said lands were leased to him from the 1st day of October, 1918, to September 30, 1919, for grazing purposes only. This lease was in force and effect at the time of the trespass. Respondent asserted no title, possession, or right of possession to the lands except under said lease. The lower court in effect instructed the jury that the respondent was the owner of the lands described in the complaint and entitled to recover for any damages sustained. This instruction is as follows:
“You are instructed that the laws of the State of Nevada do not permit a person to herd or graze his sheep upon the land of another without his consent, nor permit his sheep to-be so herded or grazed; and if you find from a preponderance of the evidence in this case that, at the time of the alleged trespass, the defendants, -without the plaintiff’s .consent, did herd or graze their sheep, or permit them to be herded or grazed, upon the lands described in the complaint, such herding or grazing is not permitted by the laws of this state, and your verdict should be for the plaintiff in such sum, not exceeding $250, as you may find from a preponderance of the evidence he has been actually damaged by such herding or grazing, and in this connection you are instructed that a person may act by his employee or agent as well as in person.”
On the other hand, having undertaken to define the word “owner,” it seems reasonable to suppose that, if it was meant to be taken in the narrow sense of owner in fee, such term, or its equivalent, would have been employed in the definition. We are inclined to the belief that the proviso in section 1, defining the term “owner,”
That respondent’s interest in the land was by the terms of the lease limited to the extent of grazing it with live stock does not alter the legal status of the case. He was nevertheless entitled to the right of exclusive possession for such purposes, and was the only person capable of sustaining appreciable damage by the herding and grazing of appellant’s live stock upon the land. We conclude that respondent, as the lessee of the Central Pacific Bailway Company, had the legal right to the land described in the lease admitted in evidence, and that the instruction given by the court in this regard is correct. Consequently the court did not
Appellants contend that, as respondent’s title to the land is not sufficient in law to enable him to maintain an action under the particular act in question, the court was without authority to enter any judgment for counsel fees. Inasmuch as we hold the title sufficient, and as the act expressly provides that the live stock which is unlawfully herded or grazed upon the lands of another shall be liable for all damages done, together with costs of suit and reasonable counsel fees, there was no error in the action of the court in fixing respondent’s counsel fees at the sum of $250. The reasonableness of the amount is not questioned.
The judgment is affirmed.