Ward v. Chevallier Ranch Company

354 P.2d 1031, 138 Mont. 144, 1960 Mont. LEXIS 63

• Court: Montana Supreme Court
• Decided: July 29, 1960
• Docket: 10096
• Status: Published

Opinions

The Honorable WILLIAM M. BLACK, District Judge

sitting in place of MR. JUSTICE ANGSTMAN, delivered the Opinion of the Court.

This is an appeal from a judgment made and entered on the 8th day of May 1959, in favor of the plaintiffs and against the defendant in the district court, and also from the order denying the defendant’s motion for a new trial.

The plaintiffs filed their complaint in trespass on June 17, 1957, alleging damages in the amount of $1,200. After the demurrer was overruled, the defendant filed its answer denying the general allegations in the complaint and with a further and affirmative defense alleging the’ propriety of any trespass, if there was one, and denying that it ever had received written notice demanding damages for such trespass.

Thereafter plaintiffs filed a reply. Issue being joined the action came on for trial before a jury in Lewis and Clark County, Montana, which rendered a verdict for the plaintiffs.

The plaintiffs and respondents herein, Ray Ward, Lawrence Ward, Charles Ward, and Lester Thompson, were the owners of nine unpatented mining claims located in Powell County, Montana, not far from Elliston, in the unorganized Little Blackfoot Mining District. These claims were principally in two groups known as the Hoosier Group and the Hard Luck Group. The plaintiffs had two small cabins on the Hoosier Group, and three small cabins on the Hard Luck Group. All of these cabins were one-room cabins, and were utilized by the plaintiffs and their families when they were in the area working their mines. The defendant and appellant herein owned several bands of sheep which it grazed in that area during the summer months. During the summer of 1956, the plaintiffs charged that defendant, the owner of the sheep, had caused damages to the plaintiffs’ mining claims, and alleged that the sheep grazed on the claims and had damaged the roads running to the various claims, and also that the sheep damaged and polluted the water in a spring which was located close to one of the cabins and that the sheep while in that locality dropped their manure and urine near the cabins and in the spring, and caused a stench and offensive odor to arise therefrom, so that the cabins could not be used to live in thereafter, and that the spring could not be used until it was cleaned out.

Plaintiffs alleged they suffered damages in the amount of $1,200.

The record indicates that most of the roads were Forest Service or public roads; that the only private road that had been built was built on the basis of a Forest Service permit. The defendant alleged that no damage was done to any property belonging to plaintiffs.

The defendant, Chevallier Ranch Company, is a sheep ranching company with its base of operations in Lewis and Clark County. In the summer of 1956, it had a permit from the U. S. Forest Service to run sheep on Helena National Forest lands in the upper reaches of the Little Blackfoot River wherein the mining claims of the plaintiffs were located. Their allotment included approximately twenty-seven sections of land in that national forest.

Plaintiffs’ evidence clearly indicates that all of their mining claims were definitely marked and the corners definitely located on all of the claims.

Plaintiffs offered in evidence Exhibits 1 to 9, inclusive, which were received in evidence without objection. These exhibits were Certificates of Location of the plaintiffs’ various mining claims.

The only testimony from the defendant was the testimony of Phil Chevallier to the effect that he did not see any markers or corners or monuments indicating boundaries of the claims, and on cross-examination he testified further that he did not look for any boundary markers. Garth Stafford, a sheepherder for defendant, testified that he did not see any such markers. This testimony is what is known as negative testimony and is in conflict with positive testimony of the plaintiffs. The exhibits above-mentioned are positive testimony to the effect that the corners were properly marked and the boundaries thus defined and established.

The testimony of Eric P. White, who was District Ranger of the Helena National Forest in 1956, as to the damages caused by the sheep trespassing is fair and impartial. He testified as to conditions around the mining cabins as follows:

“Q. What did you see with reference to the conditions at that time? A. Well, what I saw didn’t make me feel very good because it seemed that sheep had been allowed to bed close to the mining cabins where I told him to stay away from. As a matter of fact, the time spent there seemed to be quite a long time; we have a rule, one night to a bed ground, but they were there longer than one night, I know that. ’ ’

The questions at issue are:

(1) Were the boundaries and corners of the land involved herein marked and designated in such manner as to notify the public as to the location of plaintiffs’ claims?

(2) Was a trespass committed on the mining claims bjr defendant’s sheep, which trespass interfered with the plaintiffs’ mining operations and damaged their property?

By its instruction No. 14, the court stated the law of the case . with respect to owners of unpatented mining elaims in these words: “You are instructed that the owners of unpatented mining elaims are entitled to the possession and use of so much of the surface of the claim as is necessary for the conduct of his mining operations only, and that all persons cannot interfere with such possession and use, and if others do so interfere with the possession and use necessary for the mining operations, then such persons are responsible in damages for such interference. ’ ’

The question presented to the jury for its determination ivas whether or not the boundaries of the land here involved were marked as required. The jury determined such issue in favor of the respondents as evidenced by their verdict.

The district court further instructed the jury in the language used in section 46-1413, R.C.M. 1947, in its instruction No. 13.

Appellant asserts that by reason of the provisions of this statute respondents may not recover other than nominal damages because no written notice demanding a sum certain for damages by reason of the trespass was ever given to it by respondents. This section is clear and unambiguous and provides that “No person owning or possessing agricultural or grazing-land, or patented mining elaims” can recover other than nominal damages without giving written notice. The claims here were unpatented mining claims so the provisions of the statute were inapplicable.

The evidence given at the trial of this action in the lower court conclusively proves that the boundaries of the land involved herein were marked and the corners established.

The proof Avas sufficient to warrant the verdict. The amount of damages fixed by the verdict of the jury, at the sum of $700, does not appear excessive. This court will not disturb the award, unless its determination appears to have been inflnenced by passion, prejudice, or some improper motive, or unless the amount is outrageously disproportionate to the wrong, or to the situation or circumstances of the parties.

The verdict is not contrary to the instructions of the court.

Having considered all of the specifications of error assigned by appellant, we find no merit in the same.

For the foregoing reasons the judgment of the district court is affirmed.

MR. CHIEF JUSTICE HARRISON, MR. JUSTICE CASTLES, and THE HONORABLE H. B. HOFFMAN, District Judge, sitting in place of MR. JUSTICE BOTTOMLY, concur.