Searles v. Oden ( 1882 )

Lake, Ch. J.

The action in the court below was brought by Oden to recover the value of a lot of hay alleged to have been wrongfully taken from him and converted by Searles to his own use. This hay had been cut by Oden on land belonging to one Larimore, who was, it seems, a non-resident of this state. Oden recovered a judgment which it is now sought to reverse upon two grounds: fiirst, for error occurring on the trial in the rejection of certain testimony; and, second, for that the evidence was not sufficient to support the verdict.

The principal question on the trial, and the one upon which Searles mainly relied to prevent a recovery,' was as to Oden’s right to enter upon Larimore’s land and make the hay. The evidence upon this point, it must be conceded, was exceedingly meager, but ample we think to show such right with sufficient clearness for the purposes of this controversy. This evidence consisted simply of the testimony given by Oden himself to the effect that, three years before, Larimore had given him permission to “ cut hay there.” That such permission was given was not controverted by any evidence whatever, so that it must be taken as an established fact; and, although the privilege thus granted seems to have been quite general, and altogether indefinite as to the time of its continuance, so long as Larimore made no objection, but assented to its exercise, even tacitly, it would, as to strangers at least, give Oden a good title to. hay made by him on the land. We think the evidence upon the question of the right of Oden to the hay was sufficient to support the verdict, and that there is no error in this particular.

The alleged error in the rejection of testimony was in sustaining an objection to a question put to the witness C. L. Schell, called on behalf of the plaintiff in error. The question was this: “State whether or not, during the last three years, the plaintiff Oden has had any lease of' the premises, or any right of entry to the premises?” This witness had testified that he was the agent of Mr. Larimore, and had been such agent for about three years, and in answer to a previous question, had stated that there had been no lease of the land through him, or that he knew of, during that time. The question was properly held to be immaterial. Oden did not claim to be a lessee of the land, nor did his right to recover depend upon his having a lease. In his petition he had alleged his ownership of the hay which he claimed Searles had converted. To this it was answered that Oden was a trespasser upon the land where he had “ without leave or license ” * * * “ cut the grass, and put up the prairie hay mentioned in the plaintiff^ petition.” And in support of his claim of ownership Oden had testified, as already stated, that Larimore in person had given him the right to make the hay. The question, therefore,. at this stage of the case was not whether Oden had a lease from the owner of the land, but simply whether the privilege which he claimed had been given. If what Oden swore to in this particular were true — and it was not disputed — then he was not a trespasser, and his ownership of the hay, and his right to recover for its conversion, were fully established. The fact that he had no lease from Larimore would not defeat him. As to that branch of the question which asked of the witness whether Oden had “any right of entry to the premises,” it may be answered that it called for the opinion of the witness upon a question of law which could be properly drawn only from facts proven, and was therefore rightly held to be inadmissible. An answer to this question could have had no legitimate bearing upon any issue in the case, and it was therefore rightly rejected. There is no error in the matters complained of, and the judgment must be affirmed.

Judgment affirmed.