Hougham v. Eyherabide

BARNARD, P. J.—

This is an action for damages resulting from a trespass upon about 300 acres of land, owned and farmed by the plaintiff.

The original complaint alleged that the defendant and his servants had trespassed upon the lands in question by driving and grazing a large flock of sheep thereon; and that as a direct and proximate result of said trespass these lands were damaged in that a partially grown crop of wheat was destroyed, the lands were beaten down by the hoofs of the sheep so as to require releveling and redisking, the cover crop was destroyed causing the lands to become susceptible to wind erosion, and the lands have become infiltrated with noxious weed seeds carried on by the sheep, all to the plaintiff's damage in the sum of $8,500. There was also an allegation that said trespass was willful and malicious, with a prayer for an additional $1,500 exemplary damages. A demurrer was filed and sustained, on the ground of ambiguity in that the amounts of the several elements of damage were not separately stated. An amended complaint was filed, the only change being to allege that the lands of the plaintiff were damaged in that a partially grown crop of wheat was destroyed to his damage in the sum of $2,500, the lands were beaten down by the hoofs of the sheep so as to require releveling and redisking to his damage in the sum of $3,500, the cover crop was destroyed causing said lands to become susceptible to wind erosion to his damage in the sum of $1,000, and the lands have become infiltrated with noxious weed seeds carried thereon by the sheep to his damage in the sum of $1,500, all to his damage in the sum of $8,500.

At the beginning of the trial, before any evidence was received, the plaintiff asked for and received permission to amend the allegation as to damage to the growing crop of wheat by raising the amount of damage from $2,500 to $6,000. After hearing the evidence the court found, among other things, that the defendant and his servants had trespassed upon the lands in question by driving and grazing thereon a flock of about 800 sheep. It was then found “that as a direct and proximate result of said trespass the lands of plaintiff were damaged in the sum of $4,500, by reason of which plain

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tiff has suffered damages in said sum. ’ ’ Judgment was entered accordingly, and the defendant has appealed.

It is first contended that it was an abuse of. discretion for the court to permit the amendment to the complaint at the trial without notice or without a showing as to the reason therefor. No continuance was asked for and no abuse of discretion appears.