Minter v. Gose

Potter, Justice. In this case the defendants demurred to the petition on the grounds that it does not state facts sufficient to constitute a cause of action, and that separate causes of action against several defendants are improperly joined. The demurrer was sustained, and the ruling excepted to. Thereupon, the plaintiff declined to plead further and stood on his petition, and judgment was entered in favor of defendants, dismissing the petition, and awarding defendants their costs. The plaintiff prosecutes error. The action is one for damages for trespass on realty. The petition, after stating the venue and title of the case, is as follows: [182] “Comes now the plaintiff, by his attorney, M. 13. Camp-lin, and for cause of action against the defendants respectfully represents to the court: “First — -That at the time of the filing of this petition, and at all times and dates hereinafter named, the plaintiff is and was the owner and in possession of, and entitled to the possession of the following described lands, situated in the County of Weston, State of Wyoming, to-wit: The west of the northwest % and the west of the southwest J4 of Section 2, Township 47 North of Range 66 West, and has at the time of the filing of this petition, and at all times and dates hereinafter mentioned, had a legal estate therein. “Second — That during- all the time hereinafter mentioned large crops of grass and herbage were g-rowing and existing on the said lands, by reason of which the same was especially adapted for the purpose of feeding, keeping and grazing live stock; and by reason thereof the said lands were especially valuable and useful to the plaintiff for stock grazing- purposes. “Third — That on or about the 26th day of November, 1903, the said defendants, unlawfully, wrongfully and in violation of the rights of said plaintiff, caitsed to be taken a larg-e band of sheep, owned and controlled by said defendants, upon said lands, and upon and over all the same, and continued said band of sheep upon said lands, feeding and grazing the same thereon until' said lands were de-pastured and the grasses and herbage thereon wholly trod down, destroyed and consumed; and the said grasses and herbage thereon ate off by said sheep of the said defendants. “Fourth — That the plaintiff is, and was at the time aforesaid, the owner of and was engag-ed in the sheep business, and that the herbage and grasses upon 'said lands were especially reserved b} the plaintiff for the purpose of grazing his stock thereon during the fall and winter, and that b)- reason of the said acts of said defendants the plaintiff has been wliolfy deprived of the said pastures and grasses [183] upon said lands for the purposes aforesaid; and by reason of the said unlawful acts by said defendants the plaintiff has been put to great damage, loss and injury by reason of having to provide grazing and feed for his stock elsewhere, and to buy feed therefor. “Fifth — That by reason of the facts and premises herein above set forth, the plaintiff has been damaged in the sum of five hundred dollars. “Wherefore, the plaintiff prays judgment; that he do have and recover from the said defendants the sum of five hundred dollars, with interest thereon at the legal rate of eight per cent per annum, his damages as aforesaid sustained, and for the costs of this action.” No brief has been filed on behalf of> defendants in error, and hence we are not advised as to the supposed objections to the petition other than by the showing of the demurrer itself. The defendants are jointly sued, but it is not. perceived that separate causes of action against several defendants are improperly joined. There is but one cause of action stated. (21 Ency. PI. & Pr., 806.) The numbering employed in the petition is evidentl)' to distinguish the paragraphs of the same cause of action, and not to separate different causes of action; and, although unnecessary under our practice,.the petition is not for that reason objectionable on demurrer. The effect of the allegations is to charge the defendants jointly with the commission of the same alleged trespass. We think the petition states a good cause of action in trespass. (2 Waterman on Trespass, Sec. 995; Johns v. Schmidt (Kan.), 4 Pac., 872; Griffin v. Gilbert, 28 Conn., 493; 2 Bates Pl., 764-771; Casey v. Mason, 8 Okla., 675 (59 Pac., 252); Parkin v. Taylor, 5 Kan., 433; Fitzpatrick v. Gebhart, 7 Kan., 35; 21 Ency. Pl. & Pr., 817-826; Renshaw v. Lloyd, 50 Mo., 368; Leihy v. Ashland Lumbering Co., 49 Wis., 165; Anderson v. Spawn, 2 S. D., 269; Hammontree v. Huber, 39 Mo. App., 326; Merritt v. Hill, 37 Pac., 893 (Cal.); Rowland v. Rowland, 8 O., 40; Cowenhoven v. Brooklyn, 38 Barb., 9.) [184] The court, therefore, erred in sustaining the demurrer. The judgment will be reversed, and the cause remanded to the District Court with directions to vacate its judgment and order sustaining the demurrer, and enter an order overruling the demurrer, and for further proceedings according to law. Reversed. Corn, C. J., concurs.