Thompson v. Mattuschek

ANIMALS ? APPEAL AND ERROR ? FENCES ? EVIDENCE. 1. Animals ? Fencing under common law and range law. Under common law, livestock must be fenced in, but under range law, they must be fenced out, but they may not be herded in damage of a neighbor and they wander at their own and their owners risk of loss. 2. Appeal and Error ? Observation of witnesses. Where court has observed the witnesses and jury has found for the plaintiff and a motion for new trial has been denied, reviewing court will reverse only for manifest cause. 3. Appeal and Error. An appeal presumes no error. 4. Animals ? Complaint stated cause of action. Complaint filed against adjoining property owner who removed a fence line between his and plaintiffs property thereby allegedly letting his cattle enter onto plaintiffs new planting of barley was sufficient to state a cause of action for trespass of cattle upon plaintiffs property. 5. Fences ? Jointly owned fence. A line fence is a fixture and is jointly owned property of coterminous landowners and passes with the land, and in absence of an agreement, it may be removed by either owner only after six months notice to the other. 6. Animals ? Damages. Where trespass of defendants cattle upon plaintiffs barley field did not result in destruction of crop but in reduction of yield and plaintiff did harvest his barley, defendant was not entitled to be credited with the cost of harvesting and marketing of barley since cost to plaintiff of harvesting his grain in its damaged condition was the same as it would have been had the cattle not tramped and consumed a part thereof. 7. Evidence. It is a matter of common knowledge that cattle will wander. 8. Animals ? Evidence sufficient for exemplary damages. In trespass action for compensatory damages caused by trespass of defendants livestock over plaintiffs growing barley crop and for punitive damages, evidence that defendant removed fence line after being warned against it by plaintiff was sufficient to show malice as a basis for exemplary damages. 9. Appeal and Error ? When Supreme Court will disturb award of exemplary damages. Reviewing court will not disturb an award of exemplary damages unless determination of jury appears to have been influenced by passion, prejudice, or some improper motive, or unless the amount is - Page 501 outrageously disproportionate either to the wrong or the situation or circumstances of the parties. 10. Animals ? Award not excessive. Award of $2,500 as exemplary damages for trespass of defendants cattle upon plaintiffs growing barley crop was not excessive.