Powers v. Kindt

¶1The opinion of the court was delivered by

¶21. Alleged error must be specified. Defendant in error brought his action in the district court and recovered a judgment for damages to his growing grass and corn done by the cattle of plaintiffs in error during the years 1869, 1870 and 1871. Several points are pi’esented by counsel for plaintiffs in error in his brief, some of which we do not feel called upon to notice, » . . .. . _ as tor instance where he claims that the conciusions of fact are not sustained by th,e evidence, without specifying which particular finding he objects to, or wherein the testimony fails to support it. With the increasing pressure of business in this court we have not time to notice any hut such objections as are specifically and clearly pointed out.

¶32. Wanton and willful trespass. Fences. It is insisted that because the findings show that Kindt had no legal fence .or enclosure around his premises he was not entitled to recover. But the court also finds that Powers’ cattle were driven and herded upon the premises , . x x o± Kmdt against his wishes and consent, and while so driven and herded destroyed the property as alleged; and as a conclusion of law, from the various facts found, that Powers was guilty of a wanton and willful want of care. This brings the case within the rule laid down in Larkin v. Taylor, 5 Kas., 433, 446. It is claimed that because the plaintiffs in error employed herders to watch their cattle and keep them off from other parties’ crops and premises, they could not be held liable where they would hot have been held liable if they had simply turned them loose and they had roamed upon Kindt’s premises and done the damage complained of. This ignores the fact that the court finds that these cattle were driven and herded upon Kindt’s premises, which brings in the element of gross negligence, or wanton and willful want of care. It is true, the testimony is conflicting on this point; but there is positive testimony to *77support the finding, and of course this must be taken as conclusive.

¶43. Trespass by cattle of several owners. Another objection is, that, as to one item of damage, it was not done by the cattle of plaintiffs in error solely, but that other cattle were with theirs, and assisted in the destruction. The finding is that in 1870 Powers’ cattle, to the ® ^ number of 600? were driven and herded upon Kindt’s premises, and that they, with 25 head of cattle belonging to one Hughes, ate up and destroyed 100 acres of grass of the value of one dollar an acre. The total amount of damage would then be one hundred dollars caused by 625 head of cattle. ' There is nothing in the findings or testimony tending to show how much of this damage was done by any specific cattle, and in the nature of things it could not well be shown. The cattle as appears from the Testimony were off and on the premises, sometimes but two or three and sometimes all of them together. It would be impossible under such circumstances to show what damage each particular steer or number of steers did. Would the plaintiff thereby lose all redress? Clearly not. The court apportioned the damage according to the number of cattle belonging to the respective parties. Finding that 625 cattle had destroyed one hundred dollars’ worth of grass, the owners of 600 head were held responsible for $96.00 of the damages. We do not mean to decide that this rule of apportionment is one that ought always to be enforced; but we do hold that the plaintiffs in error have no ground to complain of it. These are the only questions that seem to demand especial notice, and no error appearing in them the judgment will be affirmed.