Brumley v. Flint

Belcher, C. In December, 1887, one Chester R. Brumley leased from the owner 16,320 acres of grazing land for the year 1888. Between January 1 and February 7, 1888, the defendant’s cattle wrongfully entered upon a portion of this land, and ate up, trod down, and destroyed the grass and feed growing thereon. In May, 1888, the said Brumley died, and thereafter the plaintiffs were duly appointed and qualified as executors of his will'. The plaintiffs, as such executors, brought this action to recover damages for the alleged trespasses of defendant’s cattle in the sum of one thousand dollars. The case ivas tried before the court, without a jury, and by the judgment the plaintiffs were awarded the sum of $325 and costs of suit. From this judgment, and an order denying a new trial, the defendant appeals.

1. At the trial C. J. Brumley was called as a witness for plaintiffs, and, after stating that he was the son of Chester R. Brumley and one of the plaintiffs, proceeded to testify as follows: “ I know the land described in the complaint, and have known it for the past fifteen years; it is grazing land. I know defendant’s cattle; they are branded with a star. I saw defendant’s cattle on the land described in the complaint many times during January and February, 1888, — eight, nine, eleven, or [473]twelve hundred of them, — and they were trespassing on the land. There were many fresh rain water-pools on the land, and the cattle ranged there. The ground was wet during these months, there having been a heavy snow-storm and much rain, and the cattle injured and damaged the pasture greatly by treading it down and eating it. For the past five years I have been in the cattle business, near this land.”

The witness was then asked by plaintiffs’ counsel to state what amount of damage, in his estimation, was done by the cattle during the time they were trespassing upon the land. The defendant objected to the question, “ upon the ground that the same was incompetent, irrelevant and immaterial, as asking for a conclusion which the court was to arrive at from the facts given in testimony, and further, as not the proper way to prove damages.” The court overruled the objection, and the defendant reserved an exception. The witness then answered: “The damage from eating up, treading down, and destroying the grass on the land by defendant’s cattle during the time you mention would, in my estimation, amount to seven hundred or eight hundred dollars.”

It is now urged for appellant that the ruling above mentioned was erroneous, because the witness had not been “shown to possess the requisite knowledge of the value of the property claimed to have been injured by defendant’s cattle”; and in support of this position Reed v. Drais, 67 Cal. 491, is cited.