Jensen v. Pradere

By the Court, Coleman, J.: This is an action to recover damages in the sum of $5,000 for trespass upon certain lands by the sheep of appellant, and for costs and attorney’s fees. Judgment was rendered in favor of the plaintiffs in the sum of $540, together with costs of suit, and $350 as a reasonable attorney’s fee. While appellant assigned several errors as grounds for reversal, only three of them were argued; hence we will treat those not argued as waived. 1. The first assignment which we will consider is the one to the effect that the action was brought for a tort, but that the judgment rendered was based upon an implied contract. The theory upon which this assignment is urged is that the court, in determining the amount of damage sustained by plaintiffs, fixed it at a sum equal to what it was reasonably worth to pasture the sheep. No case has been called to our attention [469] where the method of arriving at the amount of damage sustained under similar circumstances was discussed, and the only ones that we have found are those of Tex. & Pac. Ry. Co. v. Ervay, 3 Willson, Civ. Cas. Ct. App. sec. 48, p. 73, and Tex. & Pac. Ry. Co. v. Land, 3 Willson, Civ. Cas. Ct. App. sec. 51, p. 75. In those cases it was held that, the land having been used for pasturage only, evidence of its reasonable value for such purpose would be proper. Since the land which was trespassed upon by defendant’s sheep was used for pasturage only, we are of the opinion that the finding of the court sustained the pleadings and the judgment. While this question was not before the court in the case of Pyramid L. & S. Co. v. Pierce, 30 Nev. 237, 95 Pac. 210, the method of establishing the amount of damage was the same as in the case at bar. 2. It is also urged that the evidence does not support the judgment. This court has time and again held, as have the courts generally, that a judgment will not be reversed on that ground where there is substantial evidence to support it. From a consideration of the entire evidence, we are unable to say that there is not substantial evidence to support the judgment. In view of the character of the evidence in this case, it is impossible to quote from it with any degree of satisfaction, and to quote it at length is out of the question. 3. It is also asserted that that portion of the judgment awarding plaintiffs $350 as an attorney’s fee is erroneous. The court allowed an attorney’s fee pursuant to section 2336 of the Revised Laws of Nevada, which reads: “The live stock which is herded or grazed upon the lands of another, contrary to the provisions of the first section of this act, shall be liable for all damages done by said live stock while being unlawfully herded or grazed on the lands of another, as aforesaid, together with costs of suit and reasonable counsel fees, to be fixed by the court trying an action therefor, and said live stock may be seized and held by writ of attachment [470] issued in the same manner provided by the general laws of the State of Nevada, as security for the payment of any judgment which may be recovered by the owner or owners of said lands for damages incurred by reason of a violation of any of the provisions of this act, and the claim and lien of a judgment or attachment in such an action shall be superior to any claim- or demand which arose subsequent to the commencement of said action.” It is the contention of appellant that the legislature intended that an attorney’s fee might be awarded and collected only in a case where the live stock is “seized and held by a writ of -attachment,” and that no personal judgment for attorney’s fees should be rendered in any suit brought under this act. Counsel for respondents maintain that the case of Dangberg v. Ruhenstroth, 26 Nev. 457-460, 70 Pac. 320, 321, is decisive of the' question, quoting: “There is a broad distinction between the two statutes. Ours does not sanction the restraining of animals by the owner of land, and provide for a lien in his favor for their care before suit. It contemplates only an action at law for damages for the trespass, with counsel fees and costs of suit.” The exact question under consideration in the case at bar was not before the court in that case; the court simply meant to distinguish between the California statute, which provided that the land owner might take possession of the trespassing live stock and commence an action in rem, whereas our statute provides that a party may commence an action at law, sue out and levy an attachment, and, if successful, recover judgment for damages, costs, and attorney’s fees, which might be satisfied by recourse to the live stock attached. In this connection the language of Lord Halsbury, in Quinn v. Leathern (1 Br. Rul. Cas. 209), is most appropriate. He says: “Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since [471] the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority of what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.” The same idea is expressed by Lord Manners, in Revell v. Hussey (2 Ball & B. 286), from which we quote: “It is always unsatisfactory to abstract altogether the reasoning of the court in any reported case from the facts to which this reasoning is meant to apply. It has a tendency only to misrepresent one judge and to mislead another.” See, also, Cohen v. Virginia, 6 Wheat. 264, 5 L. Ed. 257; Ex Parte Young Ah Gow, 73 Cal. 438, 15 Pac. 81; Leisy v. Hardin, 135 U. S. 135, 10 Sup. Ct. 681, 34 L. Ed. 128; Mayer v. Erhardt, 88 Ill. 457; In Re Johnson, 98 Cal. 541, 542, 33 Pac. 460, 21 L. R. A. 380. Costs and attorney’s fees were not allowed at common law, and can be awarded only when the person claiming them brings himself within the express terms of the statute. The statute quoted does not provide for a personal judgment against a defendant for attorney’s fees, but simply makes the live stock liable for such fees, under certain conditions. There was no seizure and attachment of the live stock in this case; consequently there could be no personal judgment for attorney’s fees against the defendant. It may be possible that the legislature had in mind that a personal judgment should be rendered in suits brought under the act in question when the plaintiff prevails, but there is nothing in the language used to convey this idea; and, while the court may, and should, construe statutes so as to give effect to the intention of the legislature, yet if the words of the statute convey a definite meaning, there is no room for construction. (Goldfield Con. M. Co. v. State, 35 Nev. 183, 127 Pac.77.) [472] “It is the duty of the courts (in construing a statute) to confine themselves to the words of the legislature, nothing adding thereto, nothing diminishing.” (Eddy v. Morgan, 216 Ill. 437, 75 N. E. 174; 36 Cyc. 1106.) “In construing a constitution the thing to be sought is the thought expressed.” (Lewis v. Doron, 5 Nev. 399.) The judgment appealed from is modified by striking out so much thereof as awards plaintiffs an attorney’s fee in the sum of $350, and, as so modified, it is affirmed. Norcross, C. J.: I concur. McCarran, J.: I dissent.