Maddalena v. LeDuc

[212]

STEEL, J.,

pro

tem.

This is an appeal from a judgment awarding plaintiff the sum of $500 damages in an action for trespass. The cause was tried before a jury upon the issues raised by the complaint, answer thereto, and cross-complaint of the defendant.

Defendant relies for a reversal of the judgment upon the following propositions: (1) That the evidence is insufficient to sustain the judgment; and (2) That the trial court committed error in the giving of, and refusal to give certain instructions.

The essential facts, in so far as this appeal is concerned, are substantially as follows:

The defendant, a sheep owner, acting by and through his employee herder, drove a band of sheep into an enclosure owned by the plaintiff, for the purpose, as testified by the defense, of protecting them overnight from depredations of predatory animals. That evening upon learning what had taken place, the plaintiff caused the arrest of the herder for criminal trespass, and placed one of his employees in charge of the defendant’s sheep, who continued in such custody until the next morning when the herder returned. Pursuant to an order or direction of the justice of the peace, the sheep were thereafter held upon the plaintiff’s premises for a period of some two days pending proceedings in the criminal matter. Thereafter, the instant- suit was filed, wherein the damage alleged to have been sustained was by reason of the sheep depasturing and treading down the feed then growing upon plaintiff’s premises.

Appellant herein contends that the reasonable rental value of the pasture land upon which it is claimed the pasturage had been consumed or destroyed is the proper measure of damages, citing the case of

Miller & Lux, Inc.,

v.

Pinelli,

84 Cal. App. 42 [257 Pac. 573], and maintains that the evidence introduced herein in support of plaintiff’s ease is insufficient, in that it was not based upon the rule set forth above. That the rule is as stated in the Miller & Lux case,