Williams v. Miller

Belcher, C. C. — The plaintiff, being the owner of about twenty thousand acres of swamp and overflowed [291]land near the mouth of the San Joaquin River, on the twenty-first day of March, 1877, entered into a written contract with the defendants “to agist and pasture” upon his land certain cattle belonging to defendants, for the term of one year from the date of the contract. The defendants on their part agreed “ to pasture on said land, at their own risk and cost for herding, etc., all the cattle it shall be capable of grazing, over and above the sheep hereinafter mentioned, and in no case less than three thousand head,” and to pay therefor one dollar for each and every head so pastured; one half of the money to be paid when the cattle are driven to the land, and the other half in six months from that time.

The defendants did not see the land or know of its condition when the contract was made, but in 1864 and again in 1871 they had pastured a large number of cattle upon it, and the land then furnished very valuable summer pasture. At that time the surface of the ground was covered by a sod from one and a half to two and a half feet thick, made of vegetable matter, half dead and half alive, and which was sufficient to sustain cattle passing over it.

Between 1871 and 1877 efforts were made to reclaim the land by building levees around it, and the sod, with the exception of a few acres near Webb’s Landing and a few other scattered patches, was burned off.

When the contract was made the levees were broken and the tide ebbed and flowed over the whole tract, with the exception of the few places where the sod had not been burned, and this condition continued during the whole year.

Grass grew on the unburned places, but with the exception of that near Webb’s Landing, the ground intervening was so miry that cattle could not be driven or taken to them.

In May the defendants sent to the tract near Webb’s Landing, by boat, 717 head of cattle, and on the 7th of [292]June they paid the plaintiff for their pasturage $717. The cattle remained there about three months, during which time the feed was consumed and 134 head were lost. The rest of them had to be taken away, or, as the herder testified, “ we would have lost them all.”