Zumwalt v. Dickey

Fitzgerald, C. Action for damages for trespasses alleged to have been committed on the lands described in the complaint, by defendant, who it is alleged wrongfully and unlawfully, and without plaintiffs’ consent, entered thereon the large bands of sheep, and trod down and depastured all of said lands and all the grass and herbage that grew thereon during the years 1888 and 1889, and otherwise injured the same, to the great detriment of plaintiffs, and to their damage in the sum of $910.

[157]The complaint further alleges plaintiffs’ title and possession and right of possession to the lands therein described.

The answer specifically denies the material allegations of the complaint, and avers that in the summer season of 1889 defendant’s sheep were for a short time “camped on a portion of said lands known as the ‘Horse Corral meadow,’ but the feed and grass had all been eaten off by the sheep of other parties, and defendant’s sheep did not do any damage whatever to said land in camping thereon.”

The case was tried by the court without a jury, and judgment rendered in favor of plaintiffs for the sum of $305, from which judgment and the order denying his motion for a new trial this appeal is taken by the defendant.

At the trial, plaintiffs severally offered in evidence certain patents from the state of California to themselves, also a deed to them from one Crowley. These patents and the deed purported to convey to plaintiffs all of the lands described in the complaint, and when offered as stated were objected to by defendant on the grounds,— 1. That the action was barred by the statute of limitations because it was not commenced within sixty days after the alleged trespasses were committed, as required by the provisions of the statute approved February 4, 1874, entitled “An act to protect agriculture, and to prevent the trespassing of animals upon private property in the counties of Fresno, Tulare, Kern, Ventura, Santa Barbara, San Luis Obispo, and Monterey”; 2. Because one of the patents for swamp and overflowed land did not show on its face that the lands described therein were ever listed to the state.

The objections were overruled by the court, and the rulings excepted to by the defendant, and assigned as error.

With reference to the first ground of objection, it is sufficient to say that as this action was not founded on that statute, the cause of action stated in the complaint