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Wheeler v. O'Brien

December 31, 1917

D. C. WHEELER, INCORPORATED (A CORPORATION), RESPONDENT, V. O'BRIEN BROTHERS, APPELLANTS.


Appeal from Second Judicial District Court, Washoe County; Mark R. Averill, Judge.

George Springmeyer, for Appellants.

Leroy F. Pike, for Respondent.

By the Court, McCarran, C. J.:

This was an action for damages alleged to have been caused by the herding and grazing of 1,400 head of sheep upon a tract of land consisting of approximately 320 acres. The damage is alleged to have accrued inasmuch as “the land was thereby rendered almost valueless for grazing purposes for the year 1916 for any livestock.”

The trial court found:

“That on the 29th and 30th days of March, 1916, the defendants caused the said 1,400 head of sheep to be unlawfully herded and grazed upon the lands of the plaintiff.”

As a result of this unlawful herding and grazing, the court found that the plaintiff was actually damaged in the sum of $200. The court in arriving at this sum did so by a process of reasoning which need scarcely be referred to, inasmuch as in our judgment the conclusion reached by which the court fixed the damages was correct, and the damages assessed were, as we view it, not excessive. On motion for a new trial, the court made

[40 Nev. 414, Page 417]

an order that, if plaintiff would consent that the damages be reduced to $150, a new trial would be denied. To this the plaintiff consented. Appeal is from the judgment and from the order denying a new trial.

The record discloses that the tract in question, upon which the unlawful grazing is alleged to have taken place, was a wild unreclaimed tract, used particularly by respondent, plaintiff in the court below, during the lambing season; and the record discloses that it was especially valuable for this purpose by reason of its character and location.

Appellants here complain that the court assessed special damages, inasmuch as it found that:

“This land was more valuable, as shown by the evidence, for lambing than for grazing alone. It was worth possibly $50 for grazing only. The evidence was conclusive that the loss per sheep for lambing purposes was $1.”

1. It is the contention of appellants that inasmuch as the ad damnum allegation in the complaint makes no claim for special damages by reason of the loss of grasses, herbage, or browse growing on the lands, during the lambing season, or that no special damages were alleged to the plaintiff for being deprived of the use of the lands for lambing purposes, the court was unwarranted in making its finding and conclusion as it did. In this connection appellants rely upon the rule that proof of special damages cannot be introduced unless such damages have been specially pleaded; and in this connection they assert that the trial court erroneously permitted evidence as to the special damages to plaintiff for being deprived of the use of the lands for lambing purposes, and that following this evidence the court arrived at an erroneous conclusion.

The record discloses evidence going to establish that this tract of land had been generally used by respondent for the purpose of lambing a given number of sheep, and that ...


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