Williams Estate Co. v. Nevada Wonder Mining Co.

By the Court, Ducker, J.: This action was brought to recover damages for the loss of certain cattle running on the public range, which were killed by drinking cyanide solutions. The case was tried before the court without a jury, and judgment was rendered in favor of respondent for the value of cattle destroyed in the amount of $860. A motion for a new trial was made, which was denied by the court. From the judgment and order of the court denying its motion for a new trial, the mining company appeals. The respondent moved to strike the bill of exceptions and record on appeal upon the ground that it was not properly certified. As we have concluded to affirm the judgment of the lower court on the merits, we will not pass upon the motion. The salient facts are substantially as follows: The appellant is a mining company and is engaged in the business of mining in this state. On March 29, 1918, and for a number of years prior thereto, this company owned and operated a mill at the town of Wonder, in Churchill County, Nevada. The cyanide solutions discharged from the mill flowed down a slope for a mile or so and were there collected in a pond. The pond was situate for the most part on mining ground owned by the mining company, but extended over onto the public domain. These cyanide solutions are highly poisonous, and, as they resemble water, are attractive to cattle and other live stock. These facts were known to the company, which, in order to protect stock from the danger, kept the pond fenced with a barbed-wire fence, and posted notices about the pond warning the owners of — 30 — live stock of the vicinity of the pond and its dangerous contents. It is difficult to impound these cyanide solutions, and the company generally kept two men engaged in this work. It had two men there employed on March 29, _ 1918. On this day the cyanide solutions broke through the levee of the pond at a point close to the fence and flowed outside of the fence. The pond was visible from the public range where stock generally ranged the greater part of the year. The respondent is a corporation engaged in the livestock business, and it and its predecessors in interest, on March 29, 1918, and for a long time prior thereto, had cattle running on the public range in the vicinity of the pond. On this date fourteen head of respondent’s cattle came from the open range to where the cyanide solutions had broken through and flowed beyond the fence line. They drank of the solutions and were killed. The place where the cattle were killed was on the appellant’s land. At this point the fence was in good condition, but at another point about a quarter of a mile from where the cattle were killed the fence was in such a poor condition that a person, on the day before, was able to ride a horse over the wires, which were submerged in the mud, and drove cattle that had gotten inside the inclosure out over the wires. After the cattle were killed, and on the same day, it appears that respondent extended the fence back from the pond and beyon$ the dead cattle. On the day the cattle were killed, one Caldwell, who was in charge of respondent’s cattle, saw a bunch of cattle headed toward the pond. He intercepted them and, driving them back a distance of a quarter to a half a mile, turned and rode over to the town of Wonder to get his mail. When he left them the cattle were headed away from the pond and were something like one-half mile therefrom. After talking with a person about fifteen minutes he rode to the postoffice, and while he was getting his mail out of the box he was informed that — 31 — the cattle were coming over the hill. He immediately jumped on his horse and proceeded to where the solutions had escaped under the fence, and found the cattle dead. According to the testimony of two witnesses who saw the cattle coming over the open range, and saw Caldwell intercept them, as soon as he left them they turned back and continued their j ourney toward the pond. The trial court was of the opinion, expressed in its written decision, that Caldwell was not guilty of negligence, and held that the negligence of the appellant in permitting the cyanide solutions to escape from the pond and flow outside of the fence was the proximate cause of the death of the cattle and consequent inj ury to respondent. Appellant’s main contention is thus summarized by its counsel: That the evidence shows without contradiction or conflict that plaintiff’s herder, John Caldwell, was in charge of the cattle on March 29, 1918; that he was fully cognizant of the danger threatening the cattle; that he had the power to protect the cattle from said danger, and that he failed and neglected to take such measures; and that his said failure was the sole and proximate cause of the death of the cattle. Appellant makes certain other contentions, but the facts of this case do not bring it within the principles recognized and applied by the authorities cited. This is a case involving the right of cattle to run at large upon the public range of this state, and does not come within the doctrine that a recovery for damages is barred where the owner of live stock turns them loose unattended in the face of known danger; or where a herder of live stock drives them or negligently allows them to go into known danger, as in the case of Sierra Land & Stock Company v. Desert Power & Mill Company, decided in' the federal court of the district of Nevada. 1. There is no law in this state requiring the owners — 32 — of cattle or horses to keep them within inclosures. They may, and in the great majority of cases do, lawfully permit their stock to roam at will and graze over the public ranges, and also over the unfenced land of private owners. In fact, a herder of horses or cattle upon public and other uninclosed lands is unknown to the customs of stockmen in Nevada, except in special instances, and would be impracticable and often detrimental to the thrift of such stock. These public ranges usually comprise large areas of territory and we may j udge from the record that the country about the town of Wonder, over which respondent customarily permitted its cattle to range at large during the grazing season of the year, was quite extensive. It was a lawful act for the respondent to turn its cattle loose upon the range unattended by any herder, and if the stock, following the bent of their propensities, wandered upon the uninclosed lands of another, the respondent would not be liable for trespass. Chase v. Chase, 15 Nev. 259. 2. Conceding, as the evidence shows, that respondent knew of the proximity of the cyanide pond to the range and its poisonous quality, it was not contributory negligence for it to turn its cattle loose upon the range, as it and its predecessors in interest had been accustomed annually to do long prior to the existence of the pond. It could be held to no more care in this respect than that exercised by careful and prudent stockmen in this state, and that cannot be said to extend to the duty of herding cattle on the public ranges or posting guards at dangerous places maintained by others. 3. Appellant knew that the country was the habitat of stock belonging to respondent and other cattle owners, and of the deadly nature of the contents of the pond, and its attractions for cattle by reason of its resemblance to water, and its situation in open view of the surrounding range. Reasonable care and diligence was therefore imposed upon appellant'to prevent access to it by such live stock. That appellant fully realized its — 33 — duty in this respect is shown by the measures taken to perform it; namely, the fencing of the pond, the employment of men to impound the solution and to drive cattle away, and the posting of notices of warning in the vicinity. 4. The evidence discloses that the cattle were killed on mining ground belonging to the appellant, at a point' where the fence was close to the pond, and its counsel contends, for this reason, that the mining company is not liable. Ordinarily one is not bound to keep his uninclosed premises in safe condition to avoid liability for injury to trespassing stock. By reason of the general policy of the law of this state permitting cattle and horses to run at large on uninclosed land, he cannot maintain an action for such a trespass, except when the animals are herded or grazed upon his land’ contrary to the statute in such cases, but he is under no obligation to make it a safe pasture for stock. The owner of the land is not to be denied the ordinary use of his property, and the owner of stock trespassing upon it must accept the consequences of any injury that befalls them, for by permitting his stock to run at large, he is deemed to have assumed the risk of such injury. Knight v. Abert, 6 Pa. 472; Chemical Company v. Henry, 114 Tenn. 152. But this rule has a reasonable and well-recognized exception, and the facts of this case bring it clearly within the principle of this exception. The owner of land— “is not permitted negligently to leave on his premises poisonous substances which will attract passing animals, nor can he place thereon dangerous instrumentalities, as traps baited with strong-scented meats, set so near the highway on the grounds of another- that the animals of others will be lured on to his land from the place where they rightfully are to their injury or destruction. This results from the principle that where there is invitation, enticement, allurement, or attraction, a person is bound, at his peril, to use reasonable care and diligence — 34 — in keeping his property in a safe condition.” 1 R. C. L. 1133, 1134. The pond and its feeder from the mill were situated for the most part on appellant’s mining claims, but in some parts extended onto the public domain. The contents were highly poisonous, and resembled water. The pond covered a considerable area and from the descriptions of it given by witnesses and furnished by the photographs in evidence, it must, at a distance, have had the appearance of a small lake of water. It was in open view of the cattle or other stock running upon the sur-' rounding range. Watering places for cattle on the range were few and widely separated. Withal, the pond was highly attractive to thirsty cattle on the range and did allure them to its vicinity in search of water. The case of Beinhorn v. Griswold, 27 Mont. 79, 69 Pac. 557, 59 L. R. A. 771, 94 Am. St. Rep. 818, is relied upon by appellant as establishing the doctrine that a mine owner is not liable for cattle straying from the public domain onto unfenced mining property and drinking cyanide water. But there is a clear distinction between a case where animals stray upon premises, and where they are lured there by the appearances or conditions that appeal to their instincts and which are capable of destruction or injury. The former is governed by the same principle that obtains where a trespasser or bare licensee goes upon the premises of another who is bound thereby not to wilfully or wantonly injure him or fail to exercise due care to avoid it after his presence is discovered in a place of danger; while the latter rests upon the same principle that is recognized where one is brought upon the property of another by invitation, express or implied, and which imposes upon the owner the duty of keeping his premises in a reasonably safe condition. In the case of Beinhorn v. Griswold, supra, the cattle wandered upon the mine and mill site of the defendant and drank the poisonous liquid contained in vats or tubs which were not sufficiently covered. The — 35 — defendant knew that the cattle were in the habit of wandering upon his uninclosed property, and he had driven them away whenever he saw them there. There was nothing to indicate that the vats were visible from the public domain, or were instrumental in attracting the cattle there, either originally or at the time- they drank of the cyanide water. The court stated that there was no proof in the record j ustifying the application of the doctrine of enticement, allurement, or attraction, and decided upon the principle that the death of the cattle was not wantonly or intentionally caused. The trial court, in its written decision, correctly distinguished it and similar cases from the instant case. The other authorities cited by appellant as in line with Beinhorn v. Griswold, supra, do not involve the doctrine of allurement, but merely go to the extent that the owner of uninclosed land cannot be held to the exercise of reasonable care and diligence in keeping his premises in a safe condition for the live stock of others coming upon it. • 5. We think that the findings of the trial court to the effect that appellant did not exercise reasonable care in maintaining a proper fence about the cyanide solution and in preventing it from escaping from the levee and onto the lands where respondent’s cattle had access to it are sustained by the uncontradictéd evidence. In a few places the fence was in a poor condition. As previously stated, at one point about a quarter of a mile from where the cattle were killed, on the day before, the wires of the fence were submerged in mud, and one of the witnesses rode over them and drove cattle out of the inclosure. True, appellant’s negligence here was not the cause of the death of the cattle, but it is a circumstance bearing upon the degree of care exercised by appellant to keep the cyanide solution in safe limits. At a place where the cyanide solution escaped -from the levee and flowed beyond the fence where it was reached by respondent’s cattle, the fence was in fair condition. It was, however, close to the levee at this point, and the slope of the — 36 — ground was such that when the solutions penetrated the levee they easily flowed beyond the fence. It would have been easy and prudent, as the events show, for appellant to have maintained the fence further away from the levee, for, on the same day the cattle were killed, it was quickly moved back beyond the dead cattle. The lack of reasonable care on the part of appellant in not maintaining a better levee at this point, and in not keeping the fence far enough away from the levee so as to enable its employees to detect and intercept the solutions escaping from it before the flow reached beyond the fence, was the proximate cause of the death of the cattle. 6. Appellant seeks to hold respondent responsible for the death of the cattle by reason of the acts of Caldwell, which, it is claimed, amount to an omission of duty sufficient to charge respondent with contributory negligence. The facts upon which it is sought to predicate Caldwell’s negligence are undisputed. There is a statement in Caldwell’s affidavit, introduced in evidence by stipulation, in which he expressed the belief that the cattle killed were not the same cattle he turned back from the pond, but it is entitled to no weight as against the positive testimony of two witnesses that the cattle killed were the same cattle headed off from the pond by Caldwell. The trial court in its opinion assumed that they were the same cattle, and was justified by the evidence in this conclusion. Caldwell was in no sense a herder of respondent’s live stock, as assumed by appellant, nor in the sense of a vaquero moving a bunch of cattle from one place to another, or detaining them within certain limits. He had general charge of respondent’s cattle running on its range, which covered a large area of territory, and his time and attention could not therefore be devoted entirely to driving cattle away from the pond and the immediate vicinity. Had he seen the cattle making for the pond and taken no measures to prevent them from reaching it, his conduct would have — 37 — been culpable, for, knowing the deadly nature of its contents, and having the opportunity and power to protect th,e cattle from danger, it would have been his duty to exercise reasonable care and diligence to. insure their safety: As it was, he seems to have made an honest effort to discharge his duty as the exigencies of the occasion imposed it upon him. He quickly intercepted the cattle and drove them back to a point at least one-half mile from the pond and left them headed in an opposite direction, and then went to get his mail at Wonder. The event shows that he did not drive them far enough away to prevent their return to the pond. He judged wrongly, but the fact does not necessarily constitute negligence. The conduct of Caldwell must be tested by what a man of ordinary prudence would have done under the same circumstances. Consideration of cases decided on different facts furnishes little aid. We are referred to the case of Sierra Land & Live Stock Company v. Desert Power & Mill Company, supra. In that case the sheep were killed by drinking cyanide water, but it appears that they were in charge of a herder who drove them to it after being warned repeatedly of the danger. The case of Crosman v. Southern Pacific Co., 42 Nev. 92, 173 Pac. 223, decided by this court, is cited as parallel in principle, but there the defendant charged with the exercise of reasonable care displayed none whatever, but recklessly placed himself in a position of known danger. The facts are widely variant from the instant case. Caldwell displayed diligence in discovering the cattle going toward the pond for water and in driving them back to what he judged was a reasonable distance from the pond. 7. We think it is quite evident that, upon the facts, reasonable men might honestly differ as to whether Caldwell acted as a person of ordinary prudence would have acted in the same situation. Consequently the — 38 — question whether he was negligent or not was one of fact for the trial court. Solen v. V. & T. R. R. Co., 13 Nev. 106; Weck v. Reno Traction Company, 38 Nev. 285; Norfolk v. Anthony, 86 S. E. 68. As the trial court held that Caldwell was not guilty of contributory negligence, and the question was one of fact, we would not be justified in reversing the decision. The j udgment of the lower court is affirmed.