Appeal from the First Judicial District Court, Douglas County; Frank P. Langan, Judge.
Summerfield & Curler, for Appellant.
Alfred Chartz, Talbot, C. J.:
Plaintiff brought this action to recover for trespass by defendant's band of about 2,800 sheep. In the complaint filed upon the commencement of the action the different items constituting the damage, but not the amount claimed for each, were stated, and an aggregate sum of $350 demanded, and, after demurrer was interposed and sustained, plaintiff filed an amended complaint, in which he asked judgment for twice that amount, and specified the sums he claimed for the different acts causing the damage.
According to the amended complaint, it is sought to recover as damages $350 for herding and grazing the sheep upon the lands of the plaintiff, and the eating and tramping of the grass and verdure so it would not replenish, $50 for knocking down a part of the piles of cordwood which plaintiff had upon the land, $150 for tramping and filling with rocks and debris the road and trails used by the plaintiff for packing wood, and $150 for tramping, choking up, and filling springs which were situated on the land, and which were used by plaintiff for household, stock, and domestic purposes, and for fluming wood.
H. M. Yerington had executed an agreement, called a lease, to J. F. Barrett, who assigned it to the plaintiff,
and which allowed Barrett, or the plaintiff as assignee, the right of entering upon the flume and the timber lands, aggregating 2,115 acres, described therein, for the purpose of fluming wood through said flume to Carson River, and cutting the timber upon said land to any extent he may deem advisable (but not to hold possession of any part of said flume or timber lands for any other purpose whatsoever).
1. As claimed by the appellant, this so-called lease did not convey the grass on the land to Barrett, or to the plaintiff as assignee. Nevertheless, the court properly admitted it in evidence, because it tends to sustain plaintiff's right to cut and flume the wood, and incidentally to use the road and trails, and to recover for damage done to them and to the wood. The agreement was in force by consent of the parties, notwithstanding the omission of any provision specifying the time during which the privilege of cutting and fluming timber was to continue.
2. Exception is taken to the following instructions, which were requested by the defendant and refused by the court:
The jury is instructed that, plaintiff having failed to prove legal title to any of the lands described in the complaint as having been leased by him from H. M. Yerington, he is not entitled to recover damages for or on account of defendant's sheep having been herded or grazed upon said land.
The jury is instructed that the plaintiff has not offered any testimony of any damage suffered by him, if any, for loss of verdure or grass on said land described in the complaint, and in arriving at the amount of damage, if your verdict should be for the plaintiff, you cannot take into consideration any loss the plaintiff may have sustained for verdure or grass eaten up or destroyed by defendant's sheep when upon said land.
If they had been given, these instructions would have told the jury that the plaintiff could not recover damages for the herding or grazing of sheep or the eating or loss of the grass and verdure on the Yerington land, which
would have been strictly correct so far as instructions go. As the right to the grass or to use the land for grazing purposes was not conveyed by Yerington to plaintiff or his assignor, the right to recover any damage for the grazing or eating of the grass, or the mere trespass of the sheep upon the land, remained in Yerington or the owner of the land, and to him, and not to the plaintiff, the defendant would be responsible in law for the eating of the grass and the destruction of the verdure.
3. Plaintiff is not entitled to recover anything on account of the Yerington land under paragraph 4 of the amended complaint, which alleges the claim for $350, or the largest item of the damage, for the grazing upon the lands described in the complaint, and which does not designate how much of this damage was done on the Yerington land, nor how much on the other land. In view of the testimony of the plaintiff that most of the grass was upon his land, possibly it may be inferred that most of the grass eaten was upon his land; but the amount of the damage which he sustained by the grazing or eating of the grass on his own land, and which he would be entitled to recover, is not shown by allegation or proof. As the plaintiff could recover only for injury to property or some right belonging to him, the error in refusing to instruct the jury that he could not recover for the grazing and eating of the grass on the Yerington land, which had not been conveyed to him, is apparent.
The elements of damage are separate, and the purpose of having them alleged separately is that they may be considered and proved separately. The claims for knocking down the wood, for filling the road and trails with rock and debris, and for tramping and choking the springs are provable and recoverable under their own allegations, and not under the one for herding and grazing the sheep upon the lands. The sheep might have eaten the grass and destroyed the verdure without committing any other damage. The right of action for injury to the wood belonging to the plaintiff was as separate from any right of action in favor of Yerington for trespassing and grazing upon the lands as if the grass
destroyed had been on the land in which the plaintiff had no interest.
After refusing these instructions, which may have resulted in the award by the jury to the plaintiff of damages for the eating of the grass and the destruction of the verdure, the owner of the land could bring a suit, and recover the damage occasioned in this regard from the defendant, who would be doubly mulcted if he could not avoid the payment of this damage in this action. These instructions did not mean that the plaintiff could not recover for any injury to his own property or right, and, if they had had been given, and the plaintiff had desired one which would have told the jury that, notwithstanding the plaintiff could not recover for the grazing and eating of the grass and verdure on the Yerington land, he was entitled to compensation for any damage which he sustained by reason of the ...