
    330 P.2d 494
    Zelph S. CALDER, Plaintiff and Appellant, v. Ralph SIDDOWAY, Defendant and Respondent.
    No. 8833.
    Supreme Court of Utah.
    Oct 21, 1958.
    
      Zelph S. Calder, Vernal, for appellant.
    Colton & Hammond, Vernal, for respondent.
   WADE, Justice.

Zelph S. Calder commenced this action seeking damages for trespass to his real property by sheep belonging to Ralph Sid-doway. Ralph Siddoway counterclaimed for damages for breach of an agreement by Calder to furnish the labqr to- fence a boundary line .between their respective properties after Siddoway had furnished the material and for damages caused by pigs and sheep. One of the counterclaims pertained to Calder’s having carelessly and by mistake caused sheep to trespass on Sid-doway’s land and become, intermingled with his herd. The evidence indicated that Mr. Calder had permitted the sheep of Bryant Stringham, which he was permitting to graze on his land temporarily, to go over onto the Siddoway land and intermingle with the latter’s herd. The jury gave verdicts in favor of each party for some of the claimed trespasses and for the brea'ch of contract, the net result of which was a judgment against Calder and in favor of the defendant on the counterclaims in the sum of $226.80 and costs.

Appellant argues that the court erred in failing to grant his motion for summary judgment against Siddoway because appellant filed an affidavit which he avers conclusively shows that the counterclaim was unfounded and the facts alleged untrue. The pleadings theretofore filed, and the representations made to the trial court at the hearing disputed plaintiff’s claim in that regard sufficiently to raise an issue of fact, and the motion for summary judgment was properly denied. Suffice it to say that there were issues of fact to be determined and a conflict existed in the evidence so there was no error in submitting the cause to the jury.

We have considered all of appellant’s claimed errors but find no merit to any of them.

Affirmed. Costs to respondent.

McDonough, c. j., and crockett, WORTHEN, and HENRIOD, JJ., concur.  