Martin v. Martin , 30 Kan. 708 ( 1883 )

The opinion of the court was delivered by

Horton, C. J.:

Upon the trial, the court charged the jury, after calling their attention to the conveyances of John Martin to' his children, Leroy W. Martin and Olivia A. Martin, and to the reservations therein contained, that —

“Under these conveyances, the right to pasture on the eighty acres of land, for not exceeding ten head of cattle, is secured to the plaintiff, Olivia A. Martin, under the terms and conditions set forth in said deeds. It is a question of fact for the jury, whether Olivia A. Martin is a member of the family of John Martin, and whether John Martin and Olivia A. Martin occupy the homestead as alleged in the petition; and if the jury find the issues in favor of the plaintiff, they will further find from the evidence whether the defendants prevented the plaintiff from pasturing not exceeding ten head of cattle on the said eighty acres of land; and if they find that the defendants did, by force or otherwise, prevent the plaintiff from so pasturing said land, then they will further find from the evidence the market value of said pasturage of said eighty acres of land for the number of cattle the plaintiff had to pasture for the pasture season for the year 1882 up to September 9, 1882. This will be the amount of the verdict to which the plaintiff will be entitled.”

The plaintiffs in error, defendants below, excepted to this part of the charge. Their contention is that Olivia A. Martin is the head of a family, of which John Martin is a member; therefore that the reservation in' the deed executed to Leroy W. Martin cannot be enjoyed by Olivia A. Martin.

Under the facts established on the trial, the instruction was not erroneous or misleading. At the time of the excution of the deed to Leroy W. Martin, John Martin’s family consisted of himself and wife, also his-daughter Olivia A. Martin, with perhaps others; but such others, if any, are not named in the findings of the jury.' At the commencement of this action, John Martin resided on the land he occupied when he made the conveyance to his son; ¿tud although he had executed a deed therefor to his daughter, yet he reserved the premises to himself as a home and for his support for and during his natural life; so that the conveyance to the daughter, of May 11, 1882, figures but little in the case. He continues to live upon the land occupied ,by him at the time of the conveyance to his son; and the family, during the time that the right of pasturage was denied to the daughter, so living at the old home, consisted of himself, Olivia A. Martin, ■and his sister’s child. It is true that John Martin has lived with his daughter, Olivia A. Martin, ever since the conveyance of May 11, 1882, but she is his daughter, and whether he lives with her or she lives with him upon the homestead, •she constitutes a part of the family, and under the reservation in the conveyance to the son of October 31, 1868, both himself and family were entitled to the pasturage for the stock therein named. This would give to Olivia A.1 Martin, with her father’s consent, the use of the pasturage reserved.

We do not decide, or intend to decide, that after the death ■of John Martin, Olivia A. Martin or anyone else living upon •the old homestead, may enjoy the right of pasturage upon the land conveyed to the son, Leroy W. Martin, within the terms ■of the reservation. It is not necessary to go that far in the «ease before us.

We have examined the other questions presented and discussed, but perceive no error in the ruling of the trial court» The judgment must therefore be affirmed.

All the Justices concurring.