Jarvis v. Koss

427 A.2d 364 (1981)

Gary JARVIS
v.
Norman KOSS.

No. 160-79.

Supreme Court of Vermont.

February 3, 1981.

William F. Rugg, Law Offices of George E. Spear, II, Swanton, for plaintiff.

Norman Koss, pro se.

Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.

BILLINGS, Justice.

This is an appeal by the defendant from a small claims court judgment in the amount of $150.00. Plaintiff claimed, and the trial court found, that the defendant's pigs trespassed on plaintiff's adjoining land and damaged plaintiff's alfalfa crop by rooting up the seeding.

Defendant argues that the findings of fact and conclusions of law are not supported by the evidence, and that the trial court erred in taking judicial notice that pigs are rooting animals.

Findings of fact challenged on appeal are not to be set aside unless, taking the evidence in the light most favorable to the prevailing party and excluding the effect of modifying evidence, they are clearly erroneous. V.R.C.P. 52; Brown v. Town of Windsor, 139 Vt. 129, 422 A.2d 1268 (1980); Frogate v. Kissell, 138 Vt. 167, 169, 412 A.2d 1138, 1139 (1980). When the evidence is conflicting, the credibility of the witnesses, the weight of the evidence and its persuasive effect are matters for the trier of fact, and its determination must stand if supported by credible evidence even though there may be inconsistencies or substantial evidence to the contrary. Stamato v. Quazzo, 139 Vt. ___, 423 A.2d 1201 (1980); Frogate v. Kissell, supra, 138 Vt. at 169, 412 A.2d at 1139. On the record here there is sufficient evidence, including admissions by the defendant, to support the trial court's findings and judgment.

Although the record discloses that there was direct evidence that pigs are rooting animals, the trial court was without error in taking judicial notice of that fact. A court may take judicial notice of matters of common knowledge. State v. Martel, 122 Vt. 491, 493, 177 A.2d 236, 238 (1962). See also Vermont National Bank v. King, 135 Vt. 551, 552, 382 A.2d 210, 211 (1977). The habits and qualities of common animals, such as pigs, are matters of common knowledge and a proper subject for judicial notice. See e. g. Weaver v. National Biscuit Co., 125 F.2d 463 (7th Cir. 1942) (horses); Stuart v. Castro, 76 Ariz. 147, 261 P.2d 371 (1953) (cattle); State v. Wagner, 207 Iowa 224, 222 N.W. 407 (1928) (chickens).

Affirmed.