Appeal from Second Judicial District Court, Washoe County; L. N. French, Judge.
James T. Boyd, for Appellant.
Summerfield & Richards, for Respondents.
By the Court, Coleman, J.:
This is an action to recover damages in the sum of $5,000 for trespass upon certain lands by the sheep of appellant, and for costs and attorney's fees. Judgment was rendered in favor of the plaintiffs in the sum of $540, together with costs of suit, and $350 as a reasonable attorney's fee.
While appellant assigned several errors as grounds for reversal, only three of them were argued; hence we will treat those not argued as waived.
1. The first assignment which we will consider is the one to the effect that the action was brought for a tort, but that the judgment rendered was based upon an implied contract. The theory upon which this assignment is urged is that the court, in determining the amount of damage sustained by plaintiffs, fixed it at a sum equal to what it was reasonably worth to pasture the sheep. No case has been called to our attention
where the method of arriving at the amount of damage sustained under similar circumstances was discussed, and the only ones that we have found are those of Tex. & Pac. Ry. Co. v. Ervay, 3 Willson, Civ. Cas. Ct. App. sec. 48, p. 73, and Tex. & Pac. Ry. Co. v. Land, 3 Willson, Civ. Cas. Ct. App. sec. 51, p. 75. In those cases it was held that, the land having been used for pasturage only, evidence of its reasonable value for such purpose would be proper. Since the land which was trespassed upon by defendant's sheep was used for pasturage only, we are of the opinion that the finding of the court sustained the pleadings and the judgment. While this question was not before the court in the case of Pyramid L. & S. Co. v. Pierce, 30 Nev. 237, 95 Pac. 210, the method of establishing the amount of damage was the same as in the case at bar.
2. It is also urged that the evidence does not support the judgment. This court has time and again held, as have the courts generally, that a judgment will not be reversed on that ground where there is substantial evidence to support it. From a consideration of the entire evidence, we are unable to say that there is not substantial evidence to support the judgment. In view of the character of the evidence in this case, it is impossible to quote from it with any degree of satisfaction, and to quote it at length is out of the question.
3. It is also asserted that that portion of the judgment awarding plaintiffs $350 as an attorney's fee is erroneous. The court allowed an attorney's fee pursuant to section 2336 of the Revised Laws of Nevada, which reads:
The live stock which is herded or grazed upon the lands of another, contrary to the provisions of the first section of this act, shall be liable for all damages done by said live stock while being unlawfully herded or grazed on the lands of another, as aforesaid, together with costs of suit and reasonable counsel fees, to be fixed by the court trying an action therefor, and said live stock may be seized and held by writ of attachment
issued in the same manner provided by the general laws of the State of Nevada, as security for the payment of any judgment which may be recovered by the owner or owners of said lands for damages incurred by reason of a violation of any of the provisions of this act, and the claim and lien of a judgment or attachment in such an action shall be superior to any claim or demand which arose subsequent to the commencement of said action.
It is the contention of appellant that the legislature intended that an attorney's fee might be awarded and collected only in a case where the live stock is seized and held by a writ of attachment, and that no personal judgment for attorney's fees should be rendered in any suit brought under this act. Counsel for respondents maintain that the case of ...