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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 guarlian 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 consenteil 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 eniled 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 disiniss must be sustained, and it is so ordered without prejudice to another appeal. Costs are awarded to the respondent.

(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.

II eld, 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.

II eld, 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, $$ 3933–3937.] 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, SS 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. 0. Tannahill, for respondent.

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

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 sive damages were given by the jury under “Gate Way Hotel,” situated in the city of the influence of passion and prejudice. We Lewiston, Nez Perce county, and the hotel have examined the evidence with considerfurniture situated therein. It appears from able care, and are satisfied that passion or the record that the appellant owned the Gate prejudice did not influence the jury in arWay Hotel and the premises on which it was riving at its verdict. And it is specified that situated and the adjoining lot; that he leased it was error to submit the question of damsaid hotel to one Baughman, and thereafter ages to the jury because of obstructing the said Baughman assigned said lease to the light and air to said leased premises. There plaintiff ; that said plaintiff entered into the was some evidence introduced on that quespossession of said premises under said lease tion. The court, however, instructed the jury about the 12th day of November, 1901, and re that respondent could not recover for any mained in possession thereof until the 20th such alleged damages, and the presumption is day of May, 1905, and paid rent therefor until that the jury obeyed the instructions. The the last-named date. About the 1st day of

About the 1st day of third specification is the insufficiency of the April, 1905, the appellant commenced the erec evidence to justify the verdict or decision. tion of a building upon the lot adjoining said While the evidence is not as clear as it might hotel property. It is alleged that the appel- be as to the actual damage done, yet we think lant in erecting said building tore down the it sufficient to sustain the verdict for $200. walls and roof of portions of said hotel and It is contended that the arbitration pleaded built other walls in the place of those taken in the answer was binding upon the parties, down; that by this tearing down and re and that the arbitrators took into considerabuilding the hotel was rendered useless for a tion past damages and future damages for hotel property, and that respondent's furni- | what was to occur until the completion of the ture was damaged in the sum of $100, and new building. One of the arbitrators testithat he was obliged to move out of the hotel ; fied that they were to take into consideration that respondent was further damaged to the the condition of the furniture, "driving the extent of $1,100 because of the erection of

roomers away, and the future condition, consaid building and prayed for judgment for sideration of tearing out the rear walls. Yes, $1,200. Appellant demurred to the complaint. | sir; and darkness of the rooms. Mr. Frepons First. That two purported causes of action presented all of this matter to me." That had been improperly joined: (a) The cause witness further testified: "I didn't take into of action for injury to property and disturb- consideration only that that Mr. Frepons ing the quiet enjoyment under the lease; and mentioned to me as it was a hard matter to see (b) a tort by creation of a nuisance. Second, what would occur.” The respondent himself That the complaint did not state facts suffi

testified that he did not state to the arbitrators cient to constitute a cause of action. Which

that their arbitration should include anything demurrer was overruled by the court. There

that might occur after the date that they were upon appellant answered and set up three de

to pass upon the arbitration. There seems to fenses. The first was a denial that the re

be a conflict in the evidence on this point. The spondent was damaged by reason of the erec

testimony of the witness Arnold is not very tion of said building, the second that the re

positive, and the arbitrator Dill testified spondent had arbitrated the matters involved

that the condition of the furniture was one in this suit and that the arbitrators had

matter presented for the arbitrators' conawarded him $75 as damages, which had been

sideration, and that, "if I remember right, the paid by the appellant and received by the re

removal of the wall and the damage that they spondent. In the third defense the appellant,

sustained to that time by the inconvenience by way of cross-complaint, alleged that he had

that had been caused, and I think the light." rented the premises to respondent; that the

We are unable to determine from the agreerent for the same was $75 per month; that the respondent owed him for two months' rent, consideration by the arbitrators. It simply

ment for arbitration what was taken into and he asked for judgment for $150. The

states that a controversy is now existing and cause was tried to a jury and a verdict was rendered in favor of the respondent for $200. pending between the appellant and respondA motion for a new trial was overruled, and

ent in relation "to certain damages to a lease

held on the Gate Way Hotel," and the article judgment was entered in favor of the respondent for $200 and costs of suit. This appeal

itself does not state whether future damages is from the judgment and order denying a

are to be taken into consideration or not; new trial.

and we cannot from the verdict ascertain from A number of errors are assigned. The first

what items of damage the verdict was made we will consider is that the court erred in up. overruling the demurrer to the complaint. It

We think from all the testimony that the is contended that two causes of action are

jury might reasonably infer that no future improperly joined. There is nothing in this

damages were included in the arbitration. contention, for the reason that the damages

The court charged the jury upon the matter sued for arose out of the same contract and of arbitration, to the effect that if they were for injuries to property. Section 4169, found that the respondent had submitted to Rev. St. 1887. It is also specified that exces arbitration, not only the damages which had

accrued, but the damages which might accrue ages sustained by reason of the herding and in the future, it would be a complete settle- grazing sheep upon the public unappropriated

lands within two miles of plaintiff's dwelling ment of this matter, and also instructed them

house are measured by an entirely different to determine from the facts as shown by the standard and made up of different elements, and evidence what matters were submitted for rest on a different theory, from damages susarbitration. To put it most strongly in fa

tained by reason of such live stock herding and vor of the appellant, if the testimony of the grazing upon the plaintiff's own lands.

4. SAME. two arbitrators was to the effect that they

Where the action is for damages sustained took into consideration future damages, tak- by reason of the herding and grazing of sheep ing all the evidence together, there is a sub- upon the plaintiff's lands, and for the consestantial conflict upon that point, and under quent injury and damage to his growing crops.

the measure of damages is the value of the crops the well-established rule of this court a re at the time of their destruction. versal will not be granted where there is a 5. SAME. substantial conflict in the evidence. It is While the measure for damages for the well established that a landlord cannot, after

destruction of growing grass is its value at the

time and place it was destroyed, such value he has rented rooms in a building for a cer must be arrived at by the jury from evidence tain purpose, so tear down and destroy or of such facts and circumstances as will dismutilate the building as to render such rooms close the uses for which such crop would have

been most profitable, the nearest period at which unsuitable for the purposes for which they it would have been marketable, and whether were leased, without being liable for damages. or not any further labor, expense, or service Bancroft v. Godwin (Wash.) 83 Pac. 189, would have been necessary to bring it to the and authorities there cited.

warketable condition and period. It is also contended by appellant that the

(Syllabus by the Court.) respondent never at any time turned over his Appeal from District Court, Nez Perce lease to the landlord or received the consent County; Edgar C. Steele, Judge. of appellant to abandon the premises. Un Action by John Risse and wife against 0. disputed proof shows that they did abandon M. Collins and others. Judgment for plainthe premises on the 20th day of May, 1905, tiffs. Defendants appeal. Reversed and reand we think under the facts of the case they manded. had a right to do so. Royce v. Guggenheim,

Action by plaintiffs for damages caused by 106 Mass. 201, 8 Am. Rep. 322. A landlord the trespass of sheep under the provisions of cannot make a leased premises unfit for the sections 1210 and 1211 of the Revised Statuses for which it was leased, and recover utes of 1887. Judgment for the plaintiffs, rent therefor if the premises is abandoned.

and defendants moved for a new trial, and Certain errors are assigned in regard to the thereupon appealed from the judgment and admission and rejection of testimony. Some the order denying their motion. Reversed. evidence was admitted, over the objection of appellant, that was afterwards shown to be Eugene O'Neill and Lloyd Eriesson, for apincompetent, and the court charged the jury pellants. Johnson & Stookey, for respondnot to consider such evidence. We have ex

ents. amined all the errors specified and find no substantial error in the record. We find no AILSHIE, J. This action was commenced error that affected the substantial rights of in the district court in and for Nez Perce the appellant. The judgment must, therefore, county on September 9, 1904, and thereafter, be affirmed, and it is so ordered. Costs are and on December 1st, the plaintiffs filed an awarded to the respondent.

amended complaint, praying judgment in the

sum of $2,005.50 for damages sustained by STOCKSLAGER, C. J., and AILSHIE, J., reason of the defendants herding and grazing concúr.

their sheep upon the lands of plaintiffs and within two miles of their dwelling house,

in violation of the provisions of section 1210, (12 Idaho, 689)

Rev. St. 1887. Defendants answered, and RISSE et ux. V. COLLINS et al. the case went to trial and resulted in a ver(Supreme Court of Idaho. Nor. 28, 1906.) dict and judgment in favor of the plaintiffs 1. ANIMALS—TRESPASSING SHEEP-ACTION. in the sum of $150. Defendants have aption 1210 of the Revised Statutes of 1887 for denying their motion for a new trial. They

An action may be maintained under sec- pealed from the judgment and an order the trespass of sheep within two miles of plaintiff's dwelling house, where the plaintiff is the have assigned some 72 errors, but we shall absolute owner in fee simple of the lands not attempt to

not attempt to consider them singly, as upon which his dweling house is situated.

they are all reducible to a few leading propo2. COURTS-DISTRICT COURTS-JURISDICTION. sitions, the determination of which will dis

Under the provisions of section 20, art. 5, of the state Constitution, the district courts pose of all the assignments. have concurrent original jurisdiction with jus It is first contended by appellants that tice courts in actions prosecuted under sections since the plaintiffs were the owners of the 1210 and 1211 of the Reviseð Statutes of 1887 lands and premises on which their dwelling for the unlawful herding and grazing of sheep. house was situated, the case, for that reason, 3. ANIMALS-TRESPASSING SHEEP-DAMAGES.

In actions prosecuted under sections 1210 does not come within the purview of sec and 1211 of the Revised Statutes of 1887, dam- | tions 12.10 and 1211 of the Revised Statutes:

of 1887, and that those provisions only pre- , which the same must be pursued, then that tend to apply to possessory claims and dwell-doubt is dispelled by the Constitution imings situated thereon. This contention is pliedly writing into the statute the provinot tenable, and has been disposed of ad sions of section 20, art. 5, giving to the disversely to appellants in Sifers v. Johnson, 7trict courts concurrent original jurisdiction Ida ho, 798, 65 Pac. 709, 54 L. R. A. 785, 97 with the justice court. Am. St. Rep. 271. The statute was there Plaintiff's allege in their amended comheld to apply as well to a settler who had plaint general damages under the provisions absolute title as to one who had a mere of sections 1210 and 1211 of the Revised Statnaked possession.

utes, and also allege special damages as folIt is next contended by appellants that lows: (1) That they were the owners of 20 their demurrer on the ground of want of milch cows which were kept and pastured jurisdiction in the district court should have upon their premises at the time of the tresbeen sustained. Section 1211, which provides pass alleged, and that they were engaged in the remedy in these cases, contains this pro- manufacturing butter, and that the loss of vision: "The owner or the agent of such their pasture closed to them this industry, owner of sheep violating the provisions of to their damage in the sum of $600; (2) that the last section, on complaint of the party | during the times mentioned they were the or parties injured before any justice of the owners of 30 head of beef cattle which were peace for the precinct where either of the kept and pastured on their premises; that interested parties may reside is liable," etc. owing to the acts of defendants in permitIppellants insist that these statutes created ting their sheep to feed on and destroy the a new right and provided a new remedy for grass growing on the premises they were put its enforcement, and that in such case the to an additional expense of $450 in caring for remedy must be strictly pursued, and is ex and feeding their cattle, and that by reason clusive of all other remedies, and that this thereof they were also obliged to purchase is also true as to the forum provided in which feed for such stock to the amount of $240; such remedy may be pursued. In support of (3) that on account of the defendants herdthis argument counsel cites the following au ing and grazing their sheep upon plaintiffs' thorities: Reed r. Omnibus R. Co., 33 Cal. premises plaintiffs were obliged to seek pas212; Smith v. Omnibus R. Co., 36 Cal. 281; turage for 64 head of cattle and 10 head of Territory v. Mix, 1 Ariz. 52, 25 Pac. 528; | horses, and that it became necessary for Territory v. Ortiz, 1 N. M. 5: Andover Turn them to take such live stock to the Blue pike Co. v. Gould, 6 Mass. 44, 4 Am. Dec.

Mountains, in the state of Oregon, for pas80; Wiley v. Yale, 1 Metc. (Mass.) 553; Al- turage, and that they incurred expenses in clrich v. Hawkins, 6 Blackf. (Ind.) 125; Clear the employment of herders and rental for Lake W. W. Co. y. Lake Co., 45 Cal. 90; 23 range and pasturage and payment of ferryAm. & Eng. Ency. of Law, 395; Dollar Sav age to the extent of $215.50. The defendings Bank v. United States, 19 Wall. 227,

ants denied these allegations of special dam22 L. Ed. 30. Some of these authorities, di ages for want of information as to such rectly support the appellants' contention,

facts. Upon the trial the plaintiffs were while others are at least indicative of that permitted to introduce evidence tending to view. We are bound, however, by the pro-establish the general allegation of trespass visions of the Constitution which provides

and amount of damages sustained, and they at section 20 of article 5, as follows: “The were also permitted, over the objection of district court shall have original jurisdic

defendants, to introduce evidence in support tion in all cases, both at law and in equity, of each of the allegations as to special damand such appellate jurisdiction as may be ages. They produced evidence to show that conferred by law.” It should be borne in their pasture was eaten off and destroyed mind that sections 1210 and 1211 of the Re- by defendants' sheep, that they had prevised Statutes of 1887 were enacted by the viously been accustomed to graze their cows territorial Legislature in 1875—15 years be on this pasture, and that they made butter fore the adoption of the Constitution. Dur from the milk, and produced an invoice of ing that period of time the jurisdiction of

the amount of butter they had been making the courts was prescribed by statute, and during the three previous years, and they the jurisdiction and power of the district testified that they had been obliged to abancourts was somewhat different from what it

don the butter business after these repeated has been since the adoption of the Consti trespasses. They also proved the amount of tution. While the contention made by ap- | feed they were obliged to buy for their live pellants might have been sustained prior stock, and the amount of expense they had to the adoption of the Constitution, it can incurred in taking a part of their stock over not be done now. The people in the adoption into Oregon and hiring pasture for them, of the Constitution gave the district courts and the amount they had lost on 30 head of concurrent "original jurisdiction in all cases beef cattle by reason of their not being fat both at law and in equity”; and no statute | enough for the market in the early spring, can deprive them of such jurisdiction. If and other evidence along these lines, tendthere be any question as to the remedy pro- | ing to establish their allegations of special vided by this statute and the forum in damages. Defendants objected to all this

class of evidence, and insisted that the of his growing crop of grass, even though he measure of damages in such case was the had no live stock whatever. On the other value of the grass or growing crops at the hand, he was not entitled to recover from time of their destruction. The court over the defendants the expense incurred in drirruled the defendants' objections, and after ing a band of cattle 50 or 100 miles and there the evidence was closed the court instructed herding them, nor would he be entitled to the jury that these were proper items of speculate on the amount of butter he could damage, and that they should allow the make or the amount of profit he might have plaintiffs whatever sum they believed they realized out of beef cattle he could have sold had suffered in these respects.

had his grass not been destroyed. A large Respondents have argued upon this appeal element entering into the successful method that the defendants in the lower court waiv- of butter making is the knowledge of how to ed their objection to the allegations of special make it and the labor and skill employed in damages for the reason that they failed to doing the work. On the other hand, the plaindemur. A failure to demur to these para tiffs were not obliged to go out of the butter graphs of the complaint was not a waiver of business because the grass was destroyed. the defendants' right to object to the in They might have purchased feed for their troduction of evidence in support thereof, cows and continued in the business. This obfor the reason that these allegations were servation simply illustrates the uncertainty made a part of one cause of action and the and remoteness of such an element of damplaintiffs had stated a good cause of action ages. Without entering into any discussion for general damages. It is true that these or review of the conflicting rules as to the allegations might have been reached by a measure of damages to growing crops, we are motion to strike them from the complaint, satisfied, after an examination of the quesbut a failure to make such motion was not tion, to say that the measure of damages in a waiver of the right to object to the intro such cases is and should be the value of the duction of evidence in support of the allega crop at the time of the injury or destruction. tions. Before passing to a consideration of 4 Sutherland on Damages, $ 1023; 13 Cyc. the rule as to the measure of damages, it 153; 8 A. & E. Ency. (2d Ed.) 330; Colorado is well enough to observe that in this case Con. Land & Water Co. v. Hartman (Colo. there was no evidence produced showing, or App.) 38 Pac. 62; Buttles v. Chicago, S. F. tending to show, that the defendants' sheep

& C. Ry. Co., 43 Mo. App. 280; Gulf, C. & S. herded or grazed upon any public or unap F. R. Co. v. Matthews (Tex. Civ. App.) 23 propriated lands within two miles of the

S. W. 90; Sabine & Eastern Texas Ry. Co. v. dwelling house of the plaintiffs, and the Johnson, 65 Tex. 389; Gulf, C. & S. F. R. plaintiffs do not appear to have attempted to Co. v. Carter (Tex. Civ. App.) 25 S. W. 1023. establish any damages or any cause for In a case like the one under consideration damages on that account. On the other a further element of damage might, and most hand, it is abundantly established that the likely would, arise, and that is where the defendants' sheep did enter upon the lands of pasture is not only grazed off by sheep, but plaintiffs and within their inclosure and con where a large band has run over the ground sume and destroy a large amount of grass and tramped and cut out most of the grass. and alfalfa. The cause of damage for which and grass roots, so as to amount to a permaa plaintiff may recover in these cases is nent injury to the pasture for the remainder widely different where the trespass is upon of the season, and this would be especially the plaintiff's lands from that where the true where lands were chiefly useful for graztrespass has been cominitted, not upon his ing and pasturage purposes.

The chief diftilands, but upon public unappropriated lands culty will arise in every such case in deterwithin two miles of his dwelling house. mining the method of proving the value of Since there was no eviðence in this case growing grass or growing crops at a fixed and either establishing or tending to establish a specified time, and, of course, whatever the trespass upon public unappropriated lands

proof may be and whatever mode may be within the two-mile limit, it is unnecessary adopted, the true value will still remain to for us to consider or pass upon the elements some extent indefinite and uncertain. This, of damage or measure tùereof in such case however, is true in most all cases of tort. or the modes of proof to be adopted.

But a jury selected from the county or comThe only question which demands our con munity where the loss was suffered, after sideration is the measure of damage, and hearing the evidence as to the nature and con. character of proof admissible to establish

dition of the crops and the extent of the insuch damage, where the trespass has been jury, will seldom go far wrong in their escommitted upon the plaintiff's own lands. timate of the real injury done. It is true that The class and character of evidence admitted very few growing crops aside from pasture in this case at once suggests its uncertainty, have a market value at any specified or fixed remoteness, and speculative nature, and that time prior to maturing. Now, in the case at it could not have been reasonably foreseen by bar, in establishing the damage done, it the parties committing the trespass. In the would have been proper to inquire into the first place, the owner of lands would have ease or difficulty in securing other pasture been entitled to damages for the destruction near by and the market price of similar pas

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