Ward v. Sherman

SLOSS, J.

In December, 1899, the district court of Maricopa County, territory of Arizona, in an action brought by John M. Ward, plaintiff herein, against Moses H. Sherman and one Hardenberg, entered its decree adjudging that Moses H. Sherman, one of the defendants in that action and the defendant herein, was the owner and entitled to the possession of the “Sun Flower Cattle Range,” together with the cattle, horses, mules, wagons, harness, farm-tools, and machinery thereon. On January 10, 1900, the plaintiff, in accordance with said judgment and by reason thereof, surrendered to Sherman the possession of all the property described in said judgment, consisting of about twenty-four hundred head of horned cattle (the exact number not being susceptible of ascertainment), fifty-four head of horses and mules and certain other personal property, together with the range upon . which the cattle and horses were grazing, comprising 462 acres of patented land owned by plaintiff and the surrounding public domain to an extent of ten or fifteen miles. Plaintiff appealed from said judgment to the supreme court of the territory of Arizona, which affirmed the judgment, whereupon plaintiff prosecuted an appeal from the judgment of the latter court to the supreme court of the United States, which court in January, 1904, made its judgment reversing the judgment of the supreme court of Arizona, and remanded the cause to that court with directions that it should reverse the judgment of the district court of Maricopa County and remand the cause thereto for further proceedings.

The present action is brought to recover the cattle and horses and their natural increase, alleged to be twenty per cent per annum, and the other personal property, or the value, thereof, less the reasonable cost of managing the range and caring for the property, and for an accounting.

Of the answer filed by the defendant it will be sufficient, for the purposes of this appeal, to say that defendant alleged that, while he was in possession of the range, he managed it with care and economy, and that he necessarily expended in

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caring for said range and in capturing, caring for, and marketing said cattle more than all the money he did or could receive for them.

The court found that the defendant took possession of the property after the entry of the judgment in the district court of Maricopa County and retained possession until some time in the year 1902, when he transferred it to one Gunn, who afterward transferred the same to one Smith. After the reversal of the judgment in the supreme court of the United States,—to wit, some time in the year 1904, Smith surrendered said ranch and the property ¡thereon to plaintiff and plaintiff resumed possession of the same. It is found that during the time that Sherman, Gunn, and Smith were in possession of the ¡ranch they cared for the cattle, horses, mules, and other property thereon and conducted the business of the ranch in the usual and customary way and with ordinary care and diligence, except that in the ¡year 1900 Sherman paid for removing 616 cattle from the range, one thousand dollars more than it was reasonably worth to remove the same; that during the time Sherman, Gunn, and Smith were in possession of the ranch they used a portion of the cattle and the proceeds thereof in conducting and defraying the necessary expenses of the business, but they ¡did not use sufficient to defray all of said expenses, and after deducting one thousand dollars over-payment for removing cattle as above specified, there is still a deficiency in ¡the cattle used and the proceeds of cattle sold to‘meet the necessary expenses of conducting the business of said range. There is a further finding to the effect that during the year 1900 the feed for the cattle on said range was insufficient by reason of drought and the inroads of large numbers of sheep which ate up the grass and feed, and in the use ¡of ordinary care and judgment defendant removed and sold from said range from 600 to 800 head of cattle which it would not have been necessary to remove and sell except for the insufficiency of feed on the range during said year 1900, but in removing said cattle and selling the same defendant was not guilty of carelessness, negligence, or mismanagement, but acted with reasonable care, judgment, and discretion. Finally, it is found that “by reason of the inroads of sheep and drought” the cattle on said range did not increase between the time when defendant took possession of