Deary v. Anschustigui , 37 Idaho 135 ( 1923 )

GIYENS, Commissioner.

— This is a companion case to Lessman v. Anschustigui, ante, p. 127, 215 Pac. 460, the loss in weight of the cattle herein being comparable to the failure of the cattle to increase therein. Appellant herein raises the additional point that the respondent did not show such ownership in the land as would entitle him to bring an action under the two-mile limit statute. He introduced in evidence title deeds to the land, and offered evidence that he was in possession of the land and claimed title and ownership thereof. This was sufficient. (Sifers v. Johnson, 7 Ida. 798, 97 Am. St. 271, 65 Pac. 709, 54 L. R. A. 785; Denney v. Arritola, 31 Ida. 428, 174 Pac. 135.)

All the other points having been decided in the Lessman v. Anschustigui case, supra, the judgment in this case should be affirmed in the amount of $275, the value of the pasturage rented by respondent as a substitute for the pasturage destroyed by appellant’s sheep.

Budge, C. J., and McCarthy, Dunn and William A. Lee, JJ., concur.

PER CURIAM.

— The above and foregoing has been examined and is hereby adopted in whole as the opinion of the court. If respondent, within 30 days of the receipt of the remittitur by the clerk of the court below, accepts a reduction of the judgment to $275, the judgment will be sustained. If not, the judgment will be reversed with instructions to grant a new trial, and it is so 'ordered. Costs to appellant.

Petition for rehearing denied.