Murphy v. Nielsen

This appeal is from a judgment in favor of plaintiff in an action for damages for trespass upon real property. The only question urged by appellant in his opening brief is whether the trial court followed the correct rule in fixing the amount of damage awarded for the trespass. In his closing brief appellant also makes point of the fact that, in violation of the best evidence rule, the court permitted plaintiff, over defendant’s objection, to give oral testimony concerning the terms of certain written grazing permits issued to him.

Plaintiff leased several thousand acres of grazing land in El Dorado County during the years 1948 and 1949 for the purpose of summer range for sheep. A portion of the land was leased from the federal government—the balance from private owners. The substance of the evidence offered by plaintiff regarding the trespass is that during these years from 4 to 130, and at times many more, head of defendant’s cattle were seen grazing on this range. There was also testimony that cattle belonging to others than defendant were seen grazing on this leased land, but by far the major portion belonged to defendant. Plaintiff testified that during the year 1948 he paid to the lessors a total rental of $1,255, and for the year 1949 the sum of $1,345; that the grazing season was generally for a four-month period, from June 15 to September 15; that he grazed 1,666 sheep in 1948 and 1,650 sheep in 1949; and that he took his band out early in both years because the pasture was eaten off. Over objection of defense counsel, based on the best evidence rule, plaintiff was allowed to testify that under his leases in writing, he was authorized to graze a maximum of 2,000 sheep annually on the government land and 1,000 sheep annually on the privately-owned land. Although he admitted that the grass was good and of normal growth in June and July of both years, plaintiff testified that he did not graze the maximum number of sheep allowed because he did not feel that the land could hold any more. He estimated that defendant’s cattle had eaten about one-fourth of the feed on the lower range, also known as the Cody Range, and stated that in both years his sheep did not reach the growth expected as he was forced to take them off early. It developed, however, that in 1949 plaintiff had gone into receivership and did not himself take the sheep out.

Defendant offered no evidence, and at the end of plaintiff’s

Appellant contends that the trial court not only failed to follow the proper rule for measuring damages to pasturage, as set forth in the case of Miller & Lux Inc. v. Pinelli, 84 Cal.App. 42 [ 257 P. 573 ], but as well applied the rule to a factual situation unwarranted and unsupported by the evidence.

Respondent replies that the court properly followed the general rule set forth in Miller & Lux Inc. v. Pinelli, supra, namely, that the measure of damages is the reasonable rental value of the pasturage destroyed by the trespass of defendant’s cattle, and that although a different method of computing the reasonable rental value was used by the trial court herein, there was

Both parties, as well as the trial court, seemed agreed that Miller & Lux Inc. v. Pinelli outlines the rule in California for the ascertainment of damages due to the destruction of pasturage. (See also Staub v. Muller, 7 Cal.2d 221 , 228 [ 60 P.2d 283 ]; Maddalena v. LeDuc, 29 Cal.App.2d 211 , 212 [ 84 P.2d 254 ]; Wolfsen v. Hathaway, 32 Cal.2d 632 , 644 [ 198 P.2d 1 ].) In Miller & Lux Inc. v. Pinelli, supra, plaintiff sought an injunction restraining defendants from permitting their stock to trespass upon his land and for damages for the prior trespass. Plaintiff was awarded damages in the sum of $1,000 and from that award alone the defendants appealed. On appeal the court was called upon to, and did, discuss the question: “Is the rental value of pasture land a proper measure of damages for the destruction of grass, caused by trespassing stock 1” Therein at page 47 the court said:

“The customary method of estimating the value of pasturage in a stock country is to determine the number of head of stock per acre which the ordinary natural growth of grass will sustain. Well-considered cases have held that it is a reasonable rule to estimate damages for the use or destruction of pasturage, from evidence of the reasonable rental value of such grazing land per month or season, per acre, according to the number of head of stock to be pastured thereon.” (Emphasis added.)

After noting that damages for the destruction of pasture land “could not be established by the mere conclusion of a witness as to a lump sum which he estimates as damages, without giving the facts upon which his conclusion is based, ’ ’ the court, at page 51, concluded that:

“. . . [T]he measure of damages for the appropriation or destruction of pasturage, which is used for grazing purposes, where the grass cannot be reasonably severed and marketed separate from the land, is the reasonable rental value thereof in that vicinity for pasture purposes.”

In his opening brief appellant states that the question of the proper measure of damages is “the only pertinent question to be resolved.” The fact is mentioned, however, that the court, over an objection by appellant that such was not the best evidence, permitted respondent to give oral testimony concerning the provisions of the written grazing permits issued to him. (See Code Civ. Proc., § 1855.) This point is stressed with more concern in appellant’s closing brief, and it,

"By Mr. Foley: Q. And just how do you arrive at the rental value for the land that you leased from the government ?

“A. Well, the only way I think I can—you see, my permit with the government entitles me to two thousand head, and I am entitled to a thousand head on private land.

“Mr. Milham: I move that be stricken from the record as not the best evidence, and I want to see it. ’ ’

The court not only failed to grant appellant’s motion to strike this statement on the ground that it was not the best evidence, but in addition permitted respondent’s counsel, over appellant’s objection, to further question respondent concerning the number of sheep he was allowed to graze under these written permits. Respondent admitted that copies of these permits were available and could be produced by him if required. Copies are the best evidence next to the originals themselves, and where copies are shown to exist, and are available, it is error to allow oral evidence as to their contents. (Ford v. Cunningham, 87 Cal. 209 [ 25 P. 403 ].)

Even though the grazing permits had been introduced into evidence and the figure of 3,000 therefore properly before the court, still this would not, standing by itself, constitute proof that the range was adequate to support 3,000 sheep. On the question of range capacity the record is silent and it would not follow that because the permits authorized the grazing of 3,000 sheep for the season the feed would be adequate to sustain that number. Respondent testified to the amount of rental paid by him for the permits and he also testified that this was a reasonable rental. This he was entitled to do. There is testimony that, aside from the few cattle of other owners seen on the Cody range, the cattle of appellant consumed all of the feed thereon over and above what was eaten by the respondent’s sheep.

We can see no error in the method used by the court in computing damages. The testimony is to the effect that

It is elementary that a plaintiff must prove his case by a preponderance of the evidence. Here plaintiff produced competent evidence to support findings that in 1948 he paid $1,255 for and grazed 1,666 sheep, and that in 1949 he paid $1,345 for and grazed 1,650 sheep on certain ranges leased by him and that the sums paid by him as rental were reasonable; that from 4 to 130 head of appellant’s cattle trespassed on the Cody range all during these seasons and that toward the end of each season the feed was gone. There is lacking the necessary proof of: (1) The reasonable value per head per season of such range land for sheep or cattle; or (2) The total number of sheep that the range would have sustained for the seasons involved so that the unit value actually paid per head of sheep per season could have been calculated; or (3) Any testimony as to the value of the feed or of the range per acre.

Inasmuch as the trial court erroneously admitted and considered parol evidence of the number of sheep permitted on the range under respondent’s written permits and erroneously assumed this figure to be the measure of the total amount of feed available on the range and based its calculations and

The judgment is, therefore, reversed.

Van Dyke, P. J., and Schottky, J., concurred.