Warren v. Ellinwood

PLUMMER, J.

The plaintiff had judgment in this action for the recovery of a certain band of cattle, or the value thereof. From this judgment the defendant appeals.

The record shows that the plaintiff in this action and Senator John B. Curtin, deceased, were brother and sister; that during the lifetime of Senator Curtin a certain band of cattle belonging to' the plaintiff ranged upon lands under the care and custody of Senator Curtin, and were pastured thereon free of charge; that Senator Curtin died early in the year 1925; that after the decease of Senator Curtin the plaintiff attempted to secure possession of said band of cattle, and a controversy arose as to the ownership thereof, between the plaintiff and Mrs. Lucy Curtin, the widow of Senator Curtin, and the plaintiff was not allowed to take said cattle from the premises upon which they had theretofore been pastured. While this controversy continued between the plaintiff and Mrs. Curtin, as to the ownership of the band of cattle involved in this action, Mrs. Lucy Curtin leased certain tracts of land to the defendant in this action, upon which the band of cattle was ranging and feeding; that the defendant, with knowledge that the plaintiff claimed ownership of the cattle, nevertheless declined to deliver the cattle to the plaintiff or to her sons who had called upon him and demanded delivery. There is some testimony in the transcript to the effect that the defendant stated he would deliver the cattle upon payment of a bill of $300 claimed for the pasture and care of the cattle, to which the answer was made by one of the sons that the amount was outrageous. There is sufficient testimony in the record to show that the defendant had knowledge of the fact that the possession by Mrs. Lucy Curtin was wrongful, and knew the same at the time that he took possession thereof.

The finding of the court with reference to the ownership and possession of the property is as follows: ‘ ‘ That said defendant unlawfully came into the possession of said per

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sonal property, under authority received from one Lucy Curtin, and against the will of plaintiff, the said Lucy Cur-tin at the time being wrongfully in the possession of said cattle and all thereof; that the defendant did, after the commencement of this action, offer to deliver said cows, calves, heifers, steers, and the increase thereof, to plaintiff upon payment by plaintiff to defendant of the reasonable value of the pasturage and care given by said defendant, but said plaintiff has, and at all times refused to pay, and still refuses to pay for the care, pasturage and feed of said cows, heifers, calves, steers, and the increase thereof. That plaintiff is not indebted to said defendant for any pasturage, care, feed or water, given to said cattle or any thereof, by defendant; that defendant has not a lien upon said cows, heifers, calves, steers, or any thereof, for any pasturage furnished or any care furnished for said cattle.”