Tracy v. Juanto

RAND, J. — This is an action to recover damages for an alleged trespass by defendant’s sheep upon lands to which the plaintiff holds a possessory title. The answer denied that the trespass was committed by defendant’s sheep. From a judgment in favor of the plaintiff, the defendant has appealed. There are several assignments of error in the record, but only one of these is' mentioned or discussed in appellant’s brief. 1. Where no argument is presented in appellant’s brief upon an assignment of error, it is deemed to have been abandoned and waived: See Miller Lum. Co. v. Davis, 94 Or. 507, 515 (185 Pac. 462); Donohoe v. Portland Ry. Co., 56 Or. 58, 61 (107 Pac. 964); Cody v. Black, 97 Or. 343, 345 (191 Pac. 319, 192 Pac. 282). This is always subject to the right reserved by the court in furtherance of justice to notice on its own initiative a plain error of law apparent on the face of the record as prescribed by rule 12 of this court. In addition to other evidence, which was offered by the plaintiff to establish the ownership of the sheep, the plaintiff over the objection of the defendant was permitted to testify to a declaration, made in the absence of the defendant by the herder of the sheep while the same were in his possession and — 419 — under his control and upon lands claimed by the plaintiff, that the defendant was the owner of the sheep. The admissibility of this testimony is the only question necessary for decision, as it is the only one discussed in appellant’s brief. That declarations of this nature are admissible and competent as evidence tending to show ownership has been twice decided by this court in similar cases, and therefore this is no longer an open question in this state: Jones Land & Livestock Co. v. Seawell, 90 Or. 239 (176 Pac. 186), and Keller v. Johnson, 99 Or. 113 (194 Pac. 185). In this behalf, appellant contends: 1. That the acts and declarations of one in possession of personal property are admissible only to explain his possession and not to prove ownership in another. 2. That a servant is not in personal possession of property but his possession is the possession of his master; and 3. That agency cannot be proven by the declarations of the agent. 2. The declarations of one in possession of personal property concerning the title- or explaining the character of his possession are admissible in evidence as part of the res gestae, where the nature of his possession is a subject matter of inquiry. This rule is supported by a great weight of authority: See Noblitt v. Durbin, 41 Or. 555 (69 Pac. 685); Bartel v. Lope, 6 Or. 321, 327; 1 Greenl. Ev. (16 ed.), §34; 3 Wig. Ev., §1779; Jones’ Com. on Ev. 351; Haynes v. Leppig, 40 Mich. 602; Bradley v. Spofford, 23 N. H. 444 (55 Am. Dec. 205); Rex v. Eldershaw, 14 Eng. Com. Law Rep. 628. “Where the nature of one’s possession is a subject matter of inquiry, his declarations concerning the title'or explaining the character of his possession are — 420 — admissible in evidence as part of tbe res gestae Noblitt v. Durbin, supra. In Bradley v. Spofford, supra, the court said: “Such declarations of a person in possession are not only competent to rebut tbe title set up by or under tbe party who made them, but are affirmative evidence of tbe title in tbe party for whom tbe person in possession declares that be holds' it.” Tbe latter case was cited in Jones Land & Livestock Co. v. Seawell, supra, where tbis court, through tbe late Mr. Justice Benson quoted tbe above with approval. 3. Such declarations, to be admissible, must accompany tbe possession and must be made where tbe nature of tbe possession is tbe subject of inquiry, and must concern tbe title or explain tbe character of tbe possession. They must not go beyond tbis. If they show tbe source or manner of acquiring tbe title or tbe details of tbe agreement under which tbe possession is held, or are a mere narrative of a past event, they are incompetent and inadmissible. As said by Mr. Justice Bean in Noblitt v. Durbin, supra: “To be admissible, they must be such as reflect light on or qualify the possession itself, or be so connected therewith as to illustrate its character,” and as illustrative of that rule, tbe court said, “Thus * * it was held that it was proper to prove- what tbe person in possession of tbe slave said as to tbe ownership, as that was explanatory of tbe possession. ’ ’ 4. Every person owning, or lawfully possessed of land, has a right to know wbo is tbe owner of sheep trespassing upon bis land while in charge of a herder, and tbe herder in charge is tbe one of whom inquiry would most naturally be made. We think tbe answer made by tbe herder, that tbe defendant — 421 — was the owner, is evidence in the nature of res gestae to explain his possession, and under the decisions of this court which we have cited, the evidence was clearly competent. The weight and effect to be given to such evidence is a question for the jury. 5. Ordinarily, a mere servant has the bare custody of his master’s goods and deals with such goods under the immediate charge and direction of the master. In such a case the servant is not in possession of the goods; he has the mere custody only and his master has the possession. We are not dealing with a case of that character. Here a large band of sheep, comprising about 2,000 head, was in the actual possession of the herder who had been intrusted with the duty of caring for them, and the owner was absent, and not in charge or control of them, nor were the sheep upon his premises, at the time when the declaration was made. The control which the herder had over the sheep did not consist of mere custody, but he was in the actual possession of them, controlling them for the master who was absent. In Haynes v. Lepping, supra, Mr. Chief Justice Campbell held that the refusal of the court below to allow the character of the possession of personal property to be proven by the declarations, made by employees in charge, in their employer’s absence, in reply to inquiries addressed to them by creditors who were about to levy on said property, was error, and said, “We think their answers would be evidence in the nature of res gestae to explain the possession.” 6. It is true that the declarations of an agent are insufficient to establish the agency. But the doctrine of agency has nothing to do with the principle con — 422 — trolling here. This principle is based upon the presumption of ownership arising from possession, and is wholly independent of the existence or nonexistence' of the relationship of principal and agent. 7. It is a disputable presumption, and satisfactory unless overcome, “that things in the possession of a person are owned by him”: Section 799, subd. 11, Or. L. This statute is declaratory of the rule which has always prevailed, and would prevail independent of statute, and is based upon the principle stated by Mr. Greenleaf in his work on Evidence, in Volume 1, Section 34, as follows: “As men generally own the personal property they possess, proof of possession is presumptive proof of ownership,” and as stated in the note to said section, “This presumption of ownership from possession arises only when the character of the possession is wholly unexplained, that is, when the possession and nothing more appears.” As pointed out in Bradley v. Spofford, supra, under this presumption the herder’s possession, if unexplained, would be evidence of ownership in himself, and in the absence of any proof to the contrary, he would be presumed to hold and claim the sheep for himself. But his declaration that the defendant was the owner of the sheep, accompanying the act of possession, shows that he held not for himself, but for the defendant. 8. Where evidence of an act done by a party is admissible, his declarations made at the same time and in explanation thereof, are also admissible, as part of the res gestae-. 1 Rice, Ev. 384; 1 Grreenl. Ev. (15 ed.), § 110; Noblitt v. Durbin, supra. From this it follows that if evidence of what the herder did at — 423 — tlie time was competent and proper, then Ms explanation of Ms acts was also competent and proper. For the reasons above stated, the judgment appealed from will be affirmed and it is so ordered. Affirmed.