that the heirs were interested in the real estate to the extent of more than $2,000. Their guardian ad litem had appeared in the proceeding to sell said real estate and consented to the sale, and, after the sale was made, and a return of such sale made to the probate court for confirmation, the guardian ad litem being satisfied with the sale, of course, raised no objection to it. But the appellant who had purchased said real estate at the sale did raise certain objections to the proceeding for the sale and objected to the confirmation thereof. The court, however, overruled his objections and confirmed the sale. The appellant was thus endeavoring to defeat the sale which was satisfactory to the heirs and their guardian ad litem. It is very apparent that they would be affected by a modification or a reversal of the order confirming the sale. That being true they were adverse parties to said proceeding to set aside the sale and their guardian ad litem should have been served with the notice of appeal.

It is contended by counsel for appellant that, as the guardian ad litem did not appear at the hearing for the confirmation of said sale, he is not entitled to service of a notice of appeal, as that was a separate proceeding and a separate order from that consenting to the sale. We are unable to concur in this contention, for, when an application is made by an administrator to sell real estate of an intestate, the hearing of the application to sell and the hearing on the confirmation of the sale, if one follows, are all parts of one and the same proceeding-that is, the proceeding to sell real estate-and, after the guardian ad litem appeared and consented to the sale, he had then appeared in the proceeding to sell and was entitled to be served with notice of appeal from any and all orders made in said matter. We cannot segregate the several things that must be done by a probate court in ordering and confirming a sale and hold each part thereof a separate proceeding. The proceeding is begun by filing the petition of the administrator and is ended by the confirmation of the sale and delivery of the deed to the purchaser. It is a theory of our law that every person interested shall have his day in court, and, for that purpose. must be served with proper notice and given an opportunity to appear if he cares to do so. As all of the property of one who dies without disposing of it by will passes to the heirs of the intestate, subject to the control of the probate court, and to the possession of an administrator, those heirs are pecuniarily interested in all of said property, and especially is that true if all the property is of sufficient value to pay all the debts of the intestate and leave a surplus for the heirs.

The motion to dismiss must be sustained, and it is so ordered without prejudice to another appeal. Costs are awarded to the respondent.

STOCKSLAGER, C. J., and AILSIIIE, J.,

concur.

(12 Idaho. 671)

FREPONS v. GROSTEIN. (Supreme Court of Idaho. Nov. 27, 1906.) 1. ACTIONS-JOINDER OF CAUSES.

Under the provisions of section 4169, Rev. St. 1887, a plaintiff may join in the same action all injuries to property arising out of the same contract.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Action, §§ 490-510.]

2. NEW TRIAL-PREJUDICE OF JURY.

Held, that the record does not show that the jury were influenced by prejudice or passion in arriving at their verdict.

3. APPEAL-PRESUMPTIONS.

Where the court instructs a jury, in a damage case, that the plaintiff cannot recover because of the obstruction of light or air, the presumption is that the jury observed the instruction.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3757.]

4. LANDLORD AND TENANT-INJURY TO PREMISES-ACTION BY TENANT.

Held, that the evidence is sufficient to sustain the verdict of the jury.

5. APPEAL-REVIEW-CONFLICTING EVIDENCE. Where the plaintiff and defendant enter into an agreement to arbitrate certain differences between them, and the question is put in issue in an action whether future damages were considered by the arbitrators, it is a question of fact for the jury, and, where there is substantial conflict in the evidence on that point, the verdict of the jury will not be disturbed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3935-3937.] 6. ARBITRATION AND AWARD-EFFECT.

The court properly instructed the jury to the effect that, if they found that the respondent has submitted to the arbitrators, not only the damages which had accrued, but also the damages which might accrue in the future, it would be a complete settlement of the matter, and also instructed them to determine from the facts as shown by the evidence what matters were submitted.

7. LANDLORD AND TENANT-ALTERATION OF BUILDING.

A landlord cannot, after he has rented rooms for a certain purpose, so tear down and mutilate the building as to render such rooms unsuitable for the purpose for which they were leased, without being liable for damages, unless he first obtain permission of the lessee.

[Ed. Note. For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 508.] 8. SAME.

If a landlord make a leased premises unfit for the uses for which it was leased, he cannot recover rent for the leased premises if the lessee abandons the same.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 770, 784.] (Syllabus by the Court.)

Appeal from District Court, Nez Perce County; Edgar C. Steele, Judge.

Action by Peter J. Frepons against R. Grostein. Judgment for plaintiff. Defend ant appeals. Affirmed.

Eugene O'Neill and Lloyd Eriesson, for appellant. J. C. Applewhite, B. S. Crow, and S. O. Tannahill, for respondent.

SULLIVAN, J. This action was brought to recover damages alleged to have been sustained by the plaintiff, who is the respondent

here, to a leasehold premises known as the "Gate Way Hotel," situated in the city of Lewiston, Nez Perce county, and the hotel furniture situated therein. It appears from the record that the appellant owned the Gate Way Hotel and the premises on which it was situated and the adjoining lot; that he leased said hotel to one Baughman, and thereafter said Baughman assigned said lease to the plaintiff; that said plaintiff entered into the possession of said premises under said lease about the 12th day of November, 1904, and remained in possession thereof until the 20th day of May, 1905, and paid rent therefor until the last-named date. About the 1st day of April, 1905, the appellant commenced the erection of a building upon the lot adjoining said hotel property. It is alleged that the appellant in erecting said building tore down the walls and roof of portions of said hotel and built other walls in the place of those taken down; that by this tearing down and rebuilding the hotel was rendered useless for a hotel property, and that respondent's furniture was damaged in the sum of $100, and that he was obliged to move out of the hotel; that respondent was further damaged to the extent of $1,100 because of the erection of said building and prayed for judgment for $1,200. Appellant demurred to the complaint. First. That two purported causes of action had been improperly joined: (a) The cause of action for injury to property and disturbing the quiet enjoyment under the lease; and (b) a tort by creation of a nuisance. Second, That the complaint did not state facts sufficient to constitute a cause of action. Which demurrer was overruled by the court. Thereupon appellant answered and set up three defenses. The first was a denial that the respondent was damaged by reason of the erection of said building, the second that the respondent had arbitrated the matters involved in this suit and that the arbitrators had awarded him $75 as damages, which had been paid by the appellant and received by the respondent. In the third defense the appellant, by way of cross-complaint, alleged that he had rented the premises to respondent; that the rent for the same was $75 per month; that the respondent owed him for two months' rent, and he asked for judgment for $150. The cause was tried to a jury and a verdict was rendered in favor of the respondent for $200.

A motion for a new trial was overruled, and judgment was entered in favor of the respondent for $200 and costs of suit. This appeal is from the judgment and order denying a new trial.

A number of errors are assigned. The first we will consider is that the court erred in overruling the demurrer to the complaint. It is contended that two causes of action are improperly joined. There is nothing in this contention, for the reason that the damages sued for arose out of the same contract and were for injuries to property. Section 4169, Rev. St. 1887. It is also specified that exces

sive damages were given by the jury under the influence of passion and prejudice. We have examined the evidence with considerable care, and are satisfied that passion or prejudice did not influence the jury in arriving at its verdict. And it is specified that it was error to submit the question of damages to the jury because of obstructing the light and air to said leased premises. There was some evidence introduced on that question. The court, however, instructed the jury that respondent could not recover for any such alleged damages, and the presumption is that the jury obeyed the instructions. The third specification is the insufficiency of the evidence to justify the verdict or decision. While the evidence is not as clear as it might be as to the actual damage done, yet we think it sufficient to sustain the verdict for $200.

It is contended that the arbitration pleaded in the answer was binding upon the parties, and that the arbitrators took into consideration past damages and future damages for what was to occur until the completion of the new building. One of the arbitrators testified that they were to take into consideration the condition of the furniture, "driving the roomers away, and the future condition, consideration of tearing out the rear walls.

Yes,

sir; and darkness of the rooms. Mr. Frepons presented all of this matter to me." That witness further testified: "I didn't take into consideration only that that Mr. Frepons mentioned to me as it was a hard matter to see what would occur." The respondent himself testified that he did not state to the arbitrators that their arbitration should include anything that might occur after the date that they were to pass upon the arbitration. There seems to be a conflict in the evidence on this point. The testimony of the witness Arnold is not very positive, and the arbitrator Dill testified that the condition of the furniture was one matter presented for the arbitrators' consideration, and that, "if I remember right, the removal of the wall and the damage that they sustained to that time by the inconvenience that had been caused, and I think the light." We are unable to determine from the agreement for arbitration what was taken into consideration by the arbitrators. It simply states that a controversy is now existing and pending between the appellant and respondent in relation "to certain damages to a lease held on the Gate Way Hotel," and the article itself does not state whether future damages are to be taken into consideration or not; and we cannot from the verdict ascertain from what items of damage the verdict was made

up.

We think from all the testimony that the jury might reasonably infer that no future damages were included in the arbitration. The court charged the jury upon the matter of arbitration, to the effect that if they found that the respondent had submitted to arbitration, not only the damages which had

doubt is dispelled by the Constitution impliedly writing into the statute the provisions of section 20, art. 5, giving to the district courts concurrent original jurisdiction with the justice court.

It is next contended by appellants that their demurrer on the ground of want of jurisdiction in the district court should have been sustained. Section 1211, which provides the remedy in these cases, contains this provision: "The owner or the agent of such owner of sheep violating the provisions of the last section, on complaint of the party or parties injured before any justice of the peace for the precinct where either of the interested parties may reside is liable." etc. Appellants insist that these statutes created a new right and provided a new remedy for its enforcement, and that in such case the remedy must be strictly pursued, and is exclusive of all other remedies, and that this is also true as to the forum provided in which such remedy may be pursued. In support of this argument counsel cites the following authorities: Reed v. Omnibus R. Co., 33 Cal. 212: Smith v. Omnibus R. Co., 36 Cal. 281; Territory v. Mix, 1 Ariz. 52, 25 Pac. 528; Territory v. Ortiz, 1 N. M. 5: Andover Turnpike Co. v. Gould, 6 Mass. 44, 4 Am. Dec. 80; Wiley v. Yale, 1 Metc. (Mass.) 553; Aldrich v. Hawkins, 6 Blackf. (Ind.) 125; Clear Lake W. W. Co. v. Lake Co., 45 Cal. 90; 23 Am. & Eng. Ency. of Law, 395; Dollar Savings Bank v. United States, 19 Wall. 227, 22 L. Ed. 80. Some of these authorities, directly support the appellants' contention, while others are at least indicative of that view. We are bound, however, by the provisions of the Constitution which provides at section 20 of article 5, as follows: "The district court shall have original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law." It should be borne in mind that sections 1210 and 1211 of the Revised Statutes of 1887 were enacted by the territorial Legislature in 1875-15 years before the adoption of the Constitution. During that period of time the jurisdiction of the courts was prescribed by statute, and the jurisdiction and power of the district courts was somewhat different from what it has been since the adoption of the Constitution. While the contention made by appellants might have been sustained prior to the adoption of the Constitution, it cannot be done now. The people in the adoption of the Constitution gave the district courts concurrent "original jurisdiction in all cases both at law and in equity"; and no statute can deprive them of such jurisdiction. If there be any question as to the remedy provided by this statute and the forum in

Plaintiffs allege in their amended complaint general damages under the provisions of sections 1210 and 1211 of the Revised Statutes, and also allege special damages as follows: (1) That they were the owners of 20 milch cows which were kept and pastured upon their premises at the time of the trespass alleged, and that they were engaged in manufacturing butter, and that the loss of their pasture closed to them this industry. to their damage in the sum of $600; (2) that during the times mentioned they were the owners of 30 head of beef cattle which were kept and pastured on their premises; that owing to the acts of defendants in permitting their sheep to feed on and destroy the grass growing on the premises they were put to an additional expense of $450 in caring for and feeding their cattle, and that by reason thereof they were also obliged to purchase feed for such stock to the amount of $240; (3) that on account of the defendants herding and grazing their sheep upon plaintiffs' premises plaintiffs were obliged to seek pasturage for 64 head of cattle and 10 head of horses, and that it became necessary for them to take such live stock to the Blue Mountains, in the state of Oregon, for pasturage, and that they incurred expenses in the employment of herders and rental for range and pasturage and payment of ferryage to the extent of $215.50. The defendants denied these allegations of special damages for want of information as to such facts. Upon the trial the plaintiffs were permitted to introduce evidence tending to establish the general allegation of trespass and amount of damages sustained, and they were also permitted, over the objection of defendants, to introduce evidence in support of each of the allegations as to special damages. They produced evidence to show that their pasture was eaten off and destroyedby defendants' sheep, that they had previously been accustomed to graze their cows on this pasture, and that they made butter from the milk, and produced an invoice of the amount of butter they had been making during the three previous years, and they testified that they had been obliged to abandon the butter business after these repeated trespasses. They also proved the amount of feed they were obliged to buy for their live stock, and the amount of expense they had incurred in taking a part of their stock over into Oregon and hiring pasture for them, and the amount they had lost on 30 head of beef cattle by reason of their not being fat enough for the market in the early spring, and other evidence along these lines, tending to establish their allegations of special damages. Defendants objected to all this

class of evidence, and insisted that the measure of damages in such case was the value of the grass or growing crops at the time of their destruction. The court overruled the defendants' objections, and after the evidence was closed the court instructed the jury that these were proper items of damage, and that they should allow the plaintiffs whatever sum they believed they had suffered in these respects.

Respondents have argued upon this appeal that the defendants in the lower court waived their objection to the allegations of special damages for the reason that they failed to demur. A failure to demur to these paragraphs of the complaint was not a waiver of the defendants' right to object to the introduction of evidence in support thereof, for the reason that these allegations were made a part of one cause of action and the plaintiffs had stated a good cause of action for general damages. It is true that these allegations might have been reached by a motion to strike them from the complaint, but a failure to make such motion was not a waiver of the right to object to the introduction of evidence in support of the allegations. Before passing to a consideration of the rule as to the measure of damages, it is well enough to observe that in this case there was no evidence produced showing, or tending to show, that the defendants' sheep herded or grazed upon any public or unappropriated lands within two miles of the dwelling house of the plaintiffs, and the plaintiffs do not appear to have attempted to establish any damages or any cause for damages on that account. On the other hand, it is abundantly established that the defendants' sheep did enter upon the lands of plaintiffs and within their inclosure and consume and destroy a large amount of grass and alfalfa. The cause of damage for which a plaintiff may recover in these cases is widely different where the trespass is upon the plaintiff's lands from that where the trespass has been cominitted, not upon his lands, but upon public unappropriated lands within two miles of his dwelling house. Since there was no evidence in this case either establishing or tending to establish a trespass upon public unappropriated lands within the two-mile limit, it is unnecessary for us to consider or pass upon the elements of damage or measure thereof in such case or the modes of proof to be adopted.

The only question which demands our consideration is the measure of damage, and character of proof admissible to establish such damage, where the trespass has been committed upon the plaintiff's own lands. The class and character of evidence admitted in this case at once suggests its uncertainty, remoteness, and speculative nature, and that it could not have been reasonably foreseen by the parties committing the trespass. In the first place, the owner of lands would have been entitled to damages for the destruction

of his growing crop of grass, even though he had no live stock whatever. On the other hand, he was not entitled to recover from the defendants the expense incurred in driving a band of cattle 50 or 100 miles and there herding them, nor would he be entitled to speculate on the amount of butter he could make or the amount of profit he might have realized out of beef cattle he could have sold had his grass not been destroyed. A large element entering into the successful method of butter making is the knowledge of how to make it and the labor and skill employed in doing the work. On the other hand, the plaintiffs were not obliged to go out of the butter business because the grass was destroyed. They might have purchased feed for their cows and continued in the business. This observation simply illustrates the uncertainty and remoteness of such an element of damages. Without entering into any discussion or review of the conflicting rules as to the measure of damages to growing crops, we are satisfied, after an examination of the question, to say that the measure of damages in such cases is and should be the value of the crop at the time of the injury or destruction. 4 Sutherland on Damages, § 1023; 13 Cyc. 153; 8 A. & E. Ency. (2d Ed.) 330; Colorado Con. Land & Water Co. v. Hartman (Colo. App.) 38 Pac. 62; Buttles v. Chicago, S. F. & C. Ry. Co., 43 Mo. App. 280; Gulf, C. & S. F. R. Co. v. Matthews (Tex. Civ. App.) 23. S. W. 90; Sabine & Eastern Texas Ry. Co. v. Johnson, 65 Tex. 389; Gulf, C. & S. F. R. Co. v. Carter (Tex. Civ. App.) 25 S. W. 1023.

In a case like the one under consideration a further element of damage might, and most likely would, arise, and that is where the pasture is not only grazed off by sheep, but where a large band has run over the ground and tramped and cut out most of the grass. and grass roots, so as to amount to a permanent injury to the pasture for the remainder of the season, and this would be especially true where lands were chiefly useful for grazing and pasturage purposes. The chief difficulty will arise in every such case in determining the method of proving the value of growing grass or growing crops at a fixed and specified time, and, of course, whatever the proof may be and whatever mode may be adopted, the true value will still remain to some extent indefinite and uncertain. This, however, is true in most all cases of tort. But a jury selected from the county or community where the loss was suffered, after hearing the evidence as to the nature and condition of the crops and the extent of the injury, will seldom go far wrong in their estimate of the real injury done. It is true that very few growing crops aside from pasture have a market value at any specified or fixed time prior to maturing. Now, in the case at bar, in establishing the damage done, it would have been proper to inquire into the ease or difficulty in securing other pasture near by and the market price of similar pas-