Tarter v. Hand

RICE, J. In his complaint in this action, respondent alleged that he was the owner of certain described land, upon which his dwelling-house was situated, and that appellant caused large bands of sheep to be herded and grazed within two miles of the dwelling-house for a period of three days, thereby destroying grass and forage to the damage of respondent. A general demurrer was interposed and overruled. Appellant now specifies as error the order of the court overruling his demurrer. He predicates error upon the proposition that the complaint failed to allege that the lands upon which the sheep were grazed and herded were public lands of the United States. C. S., section 1908, under winch the action was brought, contains no provision to the effect that the herding or grazing must' be upon public lands of the United States in order for the plaintiff to recover for damages sustained by him as provided by C. S., section 1909. The complaint was sufficient in that respect, and the demurrer was properly overruled. ' Appellant also specifies as error the total lack of evidence to show that respondent was the owner of the lands described in the complaint. The evidence, in the absence of objection taken at the trial, is sufficient to show that respondent was the owner of certain lands in Washington county, and had his dwelling-house situated thereon. It is not essential that a complaint in an action of this character particularly describe [751] the possessory claim owned by the plaintiff upon which his dwelling-house is located. While a complaint which fails to describe the possessory claim of plaintiff might be uncertain, it would not, for that reason, fail to state a cause of action. A failure to prove that the lands of respondent were the particular lands described in the complaint does not of itself render the evidence insufficient to support the verdict. Appellant could not be injured by such failure of proof, unless he claimed that there was á variance between the pleadings and the proof. He makes no such claim, and it is apparent from the record that the case was tried by both parties upon the theory that the land described in the complaint was the land referred to in the evidence. The appellant also contends that the proof, by an overwhelming preponderance, showed that respondent was not damaged by the alleged trespass. Upon this point there was substantial evidence to sustain the verdict. Appellant further urges that the evidence shows that during the time appellant’s sheep were within two miles of respondent’s dwelling-house they were not grazing, but were trailing from the shearing plant to their range, and relies upon the case of Phipps v. Grover, 9 Ida. 415, 75 Pac. 64. There was sufficient evidence to justify the jury in finding that sheep belonging to the appellant were permitted to graze within two miles of respondent’s dwelling-house in violation of the statute. The last specification of appellant is that the evidence does not show that any of the lands within two miles of respondent’s dwelling-house were public lands of the United States. This assignment is without merit. (Smith v. Benson, 32 Ida. 99, 178 Pac. 480.) The judgment is affirmed. Costs awarded to respondent. Morgan, C. J., and Budge, J., concur.