Harker v. Seawell

DUNN, J.

This action was brought by respondent to recover damages resulting from a trespass by appellant in grazing certain sheep on the land of respondent and to obtain an injunction restraining appellant from further trespass.

Although shown to be in actual possession of the lands in controversy, respondent failed to show that, as to all of the land in controversy, he was either the owner or entitled to the possession thereof. Appellant éontends that there can be no right of recovery unless respondent shbws either ownership or right of possession of the land. In this appellant is in error. He is a trespasser and as against him simple possession under a claim of right is sufficient to support the action. In the case of Sanson v. Seawell, ante, p. 92, 204 Pac. 660, this court said: “As against a mere tort-feasor, actual possession of land, under a claim of right is sufficient to maintain trespass,” citing numerous cases.

We have' examined the record with care and while we find respondent to have suffered damage at the hands of appellant, the evidence is insufficient to support the verdict for $600. The judgment is therefore reversed, with costs to appellant.

Rice, C. J., and McCarthy, J., concur.