Cox v. Crane Creek Sheep Co. , 34 Idaho 327 ( 1921 )

DUNN, J. —

This action was brought by respondent against appellant to recover $700 damages which respondent claims to have suffered by appellant’s grazing its sheep on 320 acres of land owned by respondent in Boise county. The case was tried before the court with .a jury and a verdict returned in favor of respondent for $650, for which amount judgment was rendered, together with costs amounting to $75.50. Appeal was taken from said judgment.

Appellant specifies numerous errors, only two of which it will be necessary to notice. In attempting to prove ownership of the sheep that did the damage claimed respondent offered evidence as to the brand with which said sheep were marked and also the testimony of certain witnesses to the effect that they had talked with the herders of said sheep and that said herders had stated that appellant was the-owner. The herders were not called to testify. Evidence of the brand was properly admitted, but it was not competent for witnesses to testify as to what the herders had said about the ownership of the sheep. This is so well settled as to require no citation of authority. The admission of this evidence will require a reversal of the judgment.

Appellant also complains of the testimony given by certain witnesses as to the damage caused by said sheep. They were permitted to testify to lump sums as such damages without stating any facts upon which such estimates were based. (McGuire v. Post Falls Lbr. & Mfg. Co., 23 Ida. 608, 131 Pac. 654; McKissick v. Oregon Short Line R. Co., 13 Ida. 195, 89 Pac. 629; Pacific Livestock Co. v. Murray, 45 Or. 103, 76 Pac. 1079; Hatch Bros. Co. v. Black, 25 Wyo. 109, 165 Pac. 518.) No testimony was given from which the jury could determine the damages apart from the conclusions of these witnesses as to the aggregate amount. The jury were not informed what was the condition of the pasturage before the sheep grazed over it, nor the extent of the territory grazed over, nor the reasonable value of such pasturage at that time and place. The evidence is insufficient to justify the verdict.

Judgment is reversed and a new trial granted. Costs ' awarded to appellant.

Rice, C. J., and McCarthy and Lee, JJ., concur. Budge, J., did not sit at the hearing or take any part in the opinion.