Oliver v. Hutchinson

Mr. Ci-iiep Justice Bean, after stating the facts, delivered the opinion of the court. In the years 1899 and 1900 plaintiff was the lessee and in possession of 140 acres of land, inclosed with 600 acres belong [445] ing- to the defendants. In October, 1899, he attempted to construct a partition fence between the two tracts, but his employes, while so engaged, were arrested at the instigation of the defendants for trespassing upon inclosed land, and he was prevented, as he alleges, from completing the fence, for the want of which defendants’ stock was permitted to graze and feed upon his land, to his damage as alleged. 1. The first assignment of error is based upon the admission of oral testimony tending to show the arrest of plaintiff’s employes while constructing the fence. The argument is that the record in the criminal proceedings for an unlawful trespass was the best evidence, and should have been procured and offered by the plaintiff. The oral testimony was not admitted, however, for the purpose of proving the legality of the proceedings, but to show the fact of the arrest, that it was at the instigation of the defendants, and that by reason thereof plaintiff was prevented from constructing the fence. For this purpose the evidence was competent, and the production of the record not necessary. 2. It is next urged that the court erred in admitting evidence as to the extent of the plaintiff’s damages. He and others testified as to the value of the land for pasture purposes, and as to the shrinkage of the hay crop of 1900 by the pasturing of defendants’ stock thereon. These facts were necessary to enable the jury to intelligently estimate the damages, and, as the testimony in no sense invaded its province, it was competent. The court instructed the jury that, if plaintiff attempted to erect a partition fence on the line between his and the defendant’s lands, “or approximately so,’’ and was prevented by the acts or threats of the defendants, they would be liable for any damages that plaintiff suffered on account of the trespass of their stock; otherwise he could not recover. There was a controversy between the parties as to the true location of the line dividing their respective premises. The defend-' ants testified, in effect, that the line was established in 1866, and a fence built thereon at the time; that there was a high place or ridge where the old fence stood, and that plaintiff’s employes at the time of their arrest were attempting to build [446] a fence from six to ten feet west of this ridge, and on defendants’ land. The plaintiff, on the other hand, contended, and gave evidence tending to show, that the old ridge was not the true line, but that it was from six to ten feet west thereof, and at the place where his employes were engaged in building the fence when they were arrested. In view of this condition of the testimony, it is insisted that the instruction as given was erroneous, because it did not confine plaintiff’s right to build the fence on the true line, or on his own side thereof, and, although plaintiff may actually have been engaged in constructing a fence on the defendants’ land, and therefore a trespasser, the defendants would be liable if the jury found that the fence was approximately on the line. This criticism is, in our opinion, well taken. Plaintiff had no right or authority to construct a fence on the premises of the defendants, and it is a matter of no consequence whether he was ten feet or only one foot ovér on their land. As a matter of fact, there was a distance of only from six to ten feet between the lines contended for by the respective parties, and under this instruction it was practically left to the jury to determine whether a fence constructed on the line contended for by the plaintiff, if not the true line, would be approximately so; in other words, the jury could have found that as a matter of fact the line was as contended for by the defendants, and that plaintiff’s employes were engaged in building a fence six feet over on their land, and yet have found a verdict in favor of the plaintiff, if, in its opinion, the proposed fence was “approximately” on the true line. “Approximately” simply means “nearly” or “closely;” so the jury could properly have found that the proposed fence was on the defendants’ land, and yet, under the rule of law as given, they would be liable. The true location of the boundary line was evidently an important feature in the case, and it would have been no proof of the cause of action alleged in the complaint if the plaintiff was arrested or prevented from building the fence any distance whatever from the line and on the defendants’ land. The instruction as given was not a definite and certain guide to the jury, but left [447] it to determine what would satisfy the requirement that the fence must be approximately on the true line. Decided 25 August, 1902. Because of the error in the instruction given the judgment must be reversed, and a new trial ordered. Reversed.