205 P. 822 | Or. | 1922
— This is an action to recover damages for an alleged trespass by defendant’s sheep upon lands to which the plaintiff holds a possessory title. The answer denied that the trespass was committed by defendant’s sheep. From a judgment in favor of the plaintiff, the defendant has appealed. There are several assignments of error in the record, but only one of these is' mentioned or discussed in appellant’s brief.
In addition to other evidence, which was offered by the plaintiff to establish the ownership of the sheep, the plaintiff over the objection of the defendant was permitted to testify to a declaration, made in the absence of the defendant by the herder of the sheep while the same were in his possession and
In this behalf, appellant contends: 1. That the acts and declarations of one in possession of personal property are admissible only to explain his possession and not to prove ownership in another. 2. That a servant is not in personal possession of property but his possession is the possession of his master; and 3. That agency cannot be proven by the declarations of the agent.
“Where the nature of one’s possession is a subject matter of inquiry, his declarations concerning the title'or explaining the character of his possession are*420 admissible in evidence as part of tbe res gestae Noblitt v. Durbin, supra.
In Bradley v. Spofford, supra, the court said:
“Such declarations of a person in possession are not only competent to rebut tbe title set up by or under tbe party who made them, but are affirmative evidence of tbe title in tbe party for whom tbe person in possession declares that be holds' it.”
Tbe latter case was cited in Jones Land & Livestock Co. v. Seawell, supra, where tbis court, through tbe late Mr. Justice Benson quoted tbe above with approval.
“To be admissible, they must be such as reflect light on or qualify the possession itself, or be so connected therewith as to illustrate its character,” and as illustrative of that rule, tbe court said, “Thus * * it was held that it was proper to prove- what tbe person in possession of tbe slave said as to tbe ownership, as that was explanatory of tbe possession. ’ ’
In Haynes v. Lepping, supra, Mr. Chief Justice Campbell held that the refusal of the court below to allow the character of the possession of personal property to be proven by the declarations, made by employees in charge, in their employer’s absence, in reply to inquiries addressed to them by creditors who were about to levy on said property, was error, and said, “We think their answers would be evidence in the nature of res gestae to explain the possession.”
As pointed out in Bradley v. Spofford, supra, under this presumption the herder’s possession, if unexplained, would be evidence of ownership in himself, and in the absence of any proof to the contrary, he would be presumed to hold and claim the sheep for himself. But his declaration that the defendant was the owner of the sheep, accompanying the act of possession, shows that he held not for himself, but for the defendant.