Story v. Robinson

By the Court, Currey, C. J.: The complaint charges the defendants with taking and detaining from the possession of the plaintiff one hundred and eighty head of neat cattle, the property of the plaintiff, of the value of five thousand four hundred dollars, by reason whereof the plaintiff sustained damage in the sum of six thousand dollars. The defendants by answer deny each and every allega[207]tion of the complaint, and further answering they allege that certain of the defendants found trespassing upon lands belonging to them and one Doty, fifty-one head of plaintiff’s cattle, which they and Doty drove from said land and left immediately beyond the border thereof.

The cause was tried by the Court without a jury, and a judgment rendered for defendants. This judgment, the plaintiff maintains, was not a just legal result from the facts found, and having failed on motion to induce the Court to render judgment on the findings of fact in the plaintiff’s favor he has appealed to this Court for the purpose of securing the object for which he brought his action.

The defendants’ right to the possession of the premises from which they drove the plaintiff’s cattle is the point controverted most by the plaintiff’s counsel. It seems the plaintiff drove the cattle upon the premises claimed by the defendants through a barway in the fence, which the defendants had erected as one of the boundary lines of the land, and it was through the same barway the cattle were turned- off the premises. It is not necessary to decide the case as depending upon the defendants’ right to the exclusive possession of the land, because it sufficiently appears from the finding of the facts by the Court that the loss of which the plaintiff complains was not the proximate result of the acts of the defendants. After the cattle were driven from the premises they roamed around on a neighboring tract of land claimed by one Gregory, where they remained about a month. While they were there, Gregory requested the plaintiff to take them away, which he promised he would do, but he neglected to do so. After that the cattle wandered away among the hills, and in the course of the summer and autumn one half of the herd, consisting of one hundred and eighty head, died of starvation.'

We do not see how upon the facts found the defendants can be made liable for the cattle which were lost by starvation. The plaintiff was in duty bound to take care of bis cattle and save them from starving to death, if it could be done, after they were turned off the premises. He could not, upon any