Duval v. Rowell

HILLIARD, J.

This is an appeal from judgment in favor of respondent in an action brought by appellant to recover damages resulting from an alleged trespass.

At the time of the unfortunate series of events which ultimately culminated in this litigation, the appellant was engaged in the business of raising chickens on a ranch' near Newberry, California. In order to understand and appreciate the circumstances it is necessary to discuss the factual situation with brevity, but some attention to material details.

. The property occupied by appellant was owned by one DeFlon, who has permitted appellant to utilize the premises as a residence and chicken ranch for some three years prior to this litigation. Obviously, Mr. DeFlon is an individual of rather philanthropic disposition since appellant states that he has made a down payment upon purchase price of the land, is “supposed to buy it,” but does not know whether he will ever make any more payments thereon. This happy situation is apparently agreeable to Mr. DeFlon, who, with the permission of appellant, occasionally uses a small house on the property for living purposes.

Appellant .contends he is not an expert on the subject of raising chickens, but admits that this has been his .source of livelihood for at least 20 years,' and, in fact, as long as he can remember.

*Supp. 899

On the date in question, December 21, 1952, appellant had approximately 9,500 young chickens on the ranch, and was raising them for the market. These chickens were in pens or inelosures which were located near the house on the premises occupied by appellant and his wife.

Respondents own and operate a grocery store and tavern east of Daggett on Highway 66 and, with the exception of an inspection service approximately one mile from their place of business, enjoy the distinction of having the last telephone between that point and Daggett, which is some 12 miles distant. It was respondent’s habit and custom to accept telephone messages at his store for his neighbors and to transmit such messages to them. As far as the record discloses, this was a service gratuitously performed as a courtesy and accommodation. In a sparsely settled desert country it is obvious that this neighborly gesture was a logical holdover from the best traditions of the West. Mr. DeFlon had requested respondent to accept and transmit any telephone messages for him, and advised respondent that he might be located at the ranch occupied by appellant.