Hart v. C. H. & O. B. Fuller Co.

SHAW, J.

Upon the trial of this action the court found: “That within one year last past, to wit, in the month of February, 1917, the defendant kept five hundred and eighty (580) head of cattle in a certain pasture belonging to plaintiff for a period of about nine (9) days; and that the

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pasture so received by defendant from plaintiff was of the reasonable value of four hundred and thirty-two ($432) dollars,” and accordingly entered judgment for plaintiff, from which defendant appealed, claiming the finding in question is not supported by the evidence. It appears therefrom that plaintiff, as the owner of certain land in Imperial County, leased the same to Kehar Singh for a term expiring on January 31, 1917; that during the year 1916 Singh in farming the land produced a crop of corn or maize which, about December 9, 1916, was harvested and removed from the land, leaving the corn-stalks standing thereon, which, together with wild oats and other growth, possessed some value for the pasturage of stock; that on said last-mentioned date, to wit, December 9th, Singh by a written instrument sold and transferred to defendant all his title to the corn-stalks so standing and the right to run stock upon the land for pasture, in which instrument it was expressly provided that “the time of this pasture is not to exceed the day of the expiration of the lease now held by the party of the first part,” who was said Kehar Singh. On the morning of January 31, 1917, defendant’s foreman, knowing the lease terminated on that day, spoke to plaintiff about placing cattle on the pasture, and in reply to him plaintiff stated the lease expired on that day, following which he was entitled to possession. Notwithstanding this conversation and the fact that defendant knew of the expiration of the lease on said date, it caused the cattle to be driven upon the land about 12 o’clock on January 31st, at which time the foreman stated to plaintiff that he would see him further about it. A day or two thereafter, and plaii tiff not hearing from the foreman, he phoned to him that some agreement must be made as to the pasture. Thereupon the foreman went to see plaintiff, who told him that the cattle must be removed or defendant pay for the pasture; in reply to which the foreman stated he would have to see the manager about it, and kept the stock on the land.

Upon this showing, as to which there is no conflict in the testimony, it is impossible to perceive how the court could, under the law, have made a finding other than the one complained of. Conceding the corn-stocks and other growth were valuable for feeding purposes, as claimed by appellant, defendant’s right to the pasture and use thereof was