
    Edward P. Meyers v. Charles E. Menter.
    Filed January 8, 1902.
    No. 10,835.
    1. Damages by Cattle: Driving on Uncultivated Lands. An action will not lie in this state for damages done by cattle, mules, swine or sheep ranging at large upon uncultivated land. But the driving of such animals upon wild land is an actionable wrong.
    2. Quare Clausum Pregit: Petition: Demurrer. A petition which states that the defendant, with his cattle, broke and entered upon plaintiff's premises, and injured and destroyed property thereon, charges a willful trespass, and is good against a general demurrer.
    3. Judicial Cognizance: Latitude: Spontaneous Products. Courts will take judicial cognizance of the fact that in this latitude potatoes, sugar beets and turnips are not spontaneous products of the soil.
    4. Instructions: Evidence. Where an instruction lays down a correct legal proposition, possibly pertinent under the pleadings, it will be presumed, in the absence of a bill of exceptions, that such instruction was applicable to the evidence given at the trial.
    Error from the district court for Keith county. Tried below before Grimes, J.
    
      Affirmed,.
    
    
      Wilcox & Halligan, for plaintiff in error.
    
      John II. Bower, contra.
    
   Sullivan, J.

This proceeding in error brings up for review a judgment rendered by the district court for Keith county in an action brought by Charles Menter against Edward P. Meyers to recover damages for trespasses committed by domestic animals running at large. The answer was a general denial. A trial of the issues to a jury resulted in a verdict for $175 in favor of the plaintiff. The various specifications of error upon which defendant claims a reversal of the judgment are grounded upon the idea that the trespasses complained of were not shown to have been committed upon enclosed or cultivated lands. The petition, omitting formal parts, is as follows: “The plaintiff complains of the defendant for that on the 1st day of October, 1897, and on divers other days between that day and the commencement of this action, the defendant unlawfully and with force broke and entered upon the plaintiff’s land, being the west half of the northwest quarter and the north half of the southwest quarter, section six, township fifteen, range thirty-nine, Keith county, Nebraska, and then and there, with cattle, trod down, ate up, and destroyed various crops of the plaintiff standing thereon, to wit: fifty tons of hay in shock, twenty-five bushels potatoes, ten bushels onions, eight tons sugar beets, twenty-five bushels turnips, besides fruit trees, vines and small fruits and shrubbery belonging to the plaintiff, of the value of $200, and converted and disposed of the same to his own use, to plaintiff’s damage in the sum of $200.” Surely this pleading states a cause of action. It alleges not merely that defendant’s cattle wandered upon the plaintiff’s uncultivated land, but that the defendant, with his cattle, broke and entered and damaged and destroyed fruit and ornamental trees and certain growing crops which we know are not, in this latitude, spontaneous products of the soil. So it appears from the averments of the petition (1) that part of the land, at least, was under cultivation; and' (2) that the trespasses were the willful acts of the defendant. For two sufficient reasons, therefore, the demurrer to the petition was properly overruled. Delaney v. Errickson, 11 Nebr., 533.

In the third instruction the court told the jury that if defendant’s cattle went upon plaintiff’s premises and destroyed all or part of the property described in the petition, they should find for the plaintiff, and award him as damages the value of the property so destroyed. The evidence given at the trial is not in the record; but the presumption of law is in favor of the instruction and no* against it. The presumption is that the evidence established a willful trespass, or else that all the property in question was upon enclosed or cultivated lands. Willis v. State, 27 Nebr., 98; Oltmanns v. Findlay, 47 Nebr., 289.

The judgment is right, and is

Affirmed.  