
    HILL, Respondent, v. CHAPPEL BROTHERS OF MONTANA, INC., Appellant.
    (No. 7,263.)
    (Submitted June 4, 1934.
    Decided June 23, 1934.)
    [33 Pac. (2d) 819.]
    
      
      Mr. D. L. O’Hern and Mr. Harry L. Burns, for Appellant, submitted a brief; Mr. Burns argued the cause orally.
    
      
      Mr. W. B. Sands and Mr. Max P. Ruhr, for Kespondent, submitted a brief and argued the cause orally.
   MR. JUSTICE MATTHEWS

delivered the opinion of the court.

'The defendant, Chappel Bros., Inc., a corporation, has appealed from a judgment against it and in favor of the plaintiff, William S. Hill, for damages suffered by reason of horses belonging to the defendant trespassing upon certain leased lands lying within the Fort Belknap Indian Reservation.

The judgment is on two actions united for the purpose of the trial. The first action is upon five causes of action for trespass upon land leased by the plaintiff and four other leasers, who assigned their rights of action to the plaintiff, in the years 1929, 1930 and 1931. The second action is for like damages for trespass up to May, 1932. The plaintiff and his assignors held approximately 200,000 acres of Indian lands on the Fort Belknap Reservation, under lease for the running of sheep; the defendant, approximately 120,000 acres to the south' of the leases described' in the complaints for the running of horses. The complaints allege that defendant’s lease was sufficient to support not to exceed 3,000 head of horses, but was overstocked by placing thereon approximately 8,000 head, and, as a result, the horses were forced to seek sustenance off of their proper range, and did so by ranging upon the sheep leases.

The causes were once tried, resulting in a judgment in favor of the plaintiff for a lump sum of $15,000, but the judgment was reversed on appeal on the ground that improper testimony was admitted, over objection, on a minor issue in the case, and that, as to three of the causes of action, the plaintiff failed to prove the value of the sheep range destroyed and, as to them, was entitled to but nominal damages, and therefore the lump sum verdict and judgment could not stand. (Hill v. Chappel Bros., 93 Mont. 92, 18 Pac. (2d) 1106, 1110.) On the new trial granted the objectionable testimony was eliminated, and proof was adduced as to the damage done on each of the leases described in the complaints. This proof consisted of evidence as to the value of the grass on each of the leases for each year, an estimate of the per cent, of grass consumed by trespassing horses, and the percentage of such horses that belonged to the defendant, determined by the brands thereon. This method of proof is in accord with approved practice, permitting the jury to make their best possible estimate and to award damages accordingly. (Hill v. Chappel Brothers, above.)

The verdict was for $16,000 actual, and $2,000 exemplary, damages. The amount awarded as actual damages is large, but, when we consider that the trespass extended over 200,000 acres of grazing lands on which the leasers paid an annual rental of approximately $23,000, and that there is credible evidence to the effect that horses consumed from 25 to 50 per cent, of the grass, valued at the rental cost, three years in succession, and from 15 to 20 per cent, of the grass crop for the fourth year, and that from 75 to 80 per cent, of these horses belonged to the defendant, we find that the substantial evidence in the case will warrant any verdict up to approximately $20,000.

The defendant asserts that plaintiff was not entitled to exemplary damages, and predicates error upon the court’s instructing the jury on the subject and its refusal to instruct the jury that the evidence was insufficient to justify such award. This question was raised on the former appeal and determined adversely to the contention of the defendant. The ruling became the law of the case and is controlling on this appeal, whether right or wrong (Anderson v. Border, 87 Mont. 4, 285 Pac. 174; Skillen v. Harris, 90 Mont. 389, 3 Pac. (2d) 1054), providing the evidence is as strong in the present record as it was in the former record. Comparing the two records, we find the evidence to the effect that employees of the defendant knowingly drove horses upon the Hill and Miller leases even stronger than it was on the first trial, and, as against this challenge, the judgment must be sustained.

. Six of defendant’s specifications of error are on the court’s action in giving four instructions on the proof necessary to warrant a verdict in favor of the plaintiff and against the defendant and its refusal to give two offered instructions on that subject. Comparison of the two records discloses that the instructions as given and refused are but copies of instructions given and refused on the former trial and which were the subjects of specifications of error, as here; they were disposed of on the former appeal by the final declaration in the opinion that “We deem assignments of error not covered by anything we have said of no importance.” Again the “law of the case” bars consideration of these assignments. (Altermatt v. Rocky Mt. Fire Ins. Co., 89 Mont. 153, 295 Pac. 327.)

The defendant challenges the statement in the former opinion that “the duty of alleging and proving that some of the horses strayed * * * under the natural urge to travel and not because they needed food devolved upon the defendant,” and insists that the rule laid down in Schreiner v. Deep Creek Stock Assn., 68 Mont. 104, 217 Pac. 663, should be applied.

Conceding the application of the rule declared that “under the ‘legal fence law’ privately owned .premises must be fenced * * * or¿er to enable the owner to maintain an action for damages for trespass by livestock of another, unless (1) the trespassing animal is prohibited by statute from running at large, or (2) the trespassing animal has been placed or caused to be placed thereon by the owner of the animal with knowledge that the land is not open public domain,” this court by the .former opinion herein properly added thereto the qualification that “fence laws do not furnish immunity to one who, in disregard of property rights, turns loose his cattle under circumstances showing that they were intended to graze upon the land of another,” and held that, “where one stocks his own land with a greater number of horses than it can properly support, so that in order to sustain life * * * they are forced to pasture on the lands of others,” it is as if “they were driven thereon in the first instance.”

In the first opinion it is held that the plaintiff made out a prima facie case of overstocking; the evidence on which this court so held was repeated, with additions, on the second trial. One witness testified that the defendant’s lease “looked like fire had been over it”; another that “horses could not live there in 1930 and 1931; there was not any feed there for them.” There is therefore substantial evidence in the record that the horse leases were overstocked, and, although the defendant did introduce credible evidence to the contrary, it but created a conflict resolved by the jury in favor of the plaintiff and cannot effect a reversal of the judgment.

While many of defendant’s horses were purchased from Indians owning land within the sheep leases, the fact cannot aid the defendant if, in fact, they returned to their former range at a time when there was little or no feed on the lands to which they had been taken. On the record the declaration that the burden of showing that some of the horses returned to their former range from habit — as, for example, proof that these Indian horses returned to their former range before the grass was depleted on defendant’s lease — was upon the defendant is correct; it would be in the nature of reducing the amount of acknowledged damage.

As a part of plaintiff’s proof there was read to the jury the deposition of M. B. Clark, superintendent of the Fort Belknap Agency, as to what he observed on a four-day survey of the reservation made in November, 1930. Objection was made to the following statement being read to the jury, on the ground that it was a “conclusion and opinion of the witness”: “It was noticed during this entire survey that the range was short and there was considerable evidence of trespassing horses, judging by the droppings that were seen here and there on the range. At the time of the survey, water seemed to be scarce on most of the range and it was noted that on the Kuhr range, water was unusually scarce and grass and other vegetation was short. In fact, the entire survey showed that the range was short and” — here the defendant interposed the following objection: "We desire to object to the balance-of the sentence for the reason that there has been no foundation laid for the same and it is a conclusion and opinion of the witness.” The objection was overruled, and the reading of the statement continued — "and considerable evidence of trespassing horses was observed throughout the range.”

The specifications of error in the admission of this testimony contain other portions of the statement of the witness, but, as to these, no objection was interposed, and the last objection, quoted above, clearly related only to "the balance of the sentence” as quoted thereafter. Further, the objection that "there has been no foundation laid” was directed only to the final statement, the only necessary foundation for which was that the witness had been on the ground, and does not warrant the argument that the witness was not properly qualified to express his opinion as to the condition of the range. The deposition, however, discloses that Clark was superintendent during the period of the alleged trespasses, charged with the duty of seeing that the leasers complied with the conditions of their leases. The vice of the expression "water seemed to be scarce,” if vice it was, is negligible.

Counsel contend that the particular vice of the statement is in the use of the word "trespassing,” as the question as to whether or not defendant’s horses trespassed on the sheep ranges was for the jury.

Conceding that it is error to permit a witness to state his conclusion as to an ultimate fact which is for the jury’s determination on the evidence (Hamilton v. Monidah Trust, 39 Mont. 269, 102 Pac. 335; Demarais v. Johnson, 90 Mont. 366, 3 Pac. (2d) 283, 77 A. L. R. 553), a judgment will not be reversed for harmless error, and, whether a particular error shall be classed as harmful or harmless depends upon the peculiar facts and circumstances in the particular case under review. (State v. Diedtman, 58 Mont. 13, 190 Pac. 117; Fowlie v. Cruse, 52 Mont. 222, 157 Pac. 958.)

While the answer denied the allegations of trespass, the testimony on behalf of both the plaintiff and the defendant placed the matter outside the controversial questions for determination. The theory on which the case was defended was that, conceding that certain of defendant’s horses strayed to and upon the sheep leases, it was not liable in the circumstances shown.

Prior to the reading of Clark’s deposition, voluminous testimony was adduced concerning trespassing horses and the percentage bearing defendant’s brand, and, just prior to making the objectionable statement, Clark had testified that he had counted 304 horses bearing such brand on the sheep leases. Defendant’s employees did not deny that horses belonging to the defendant strayed from his leases and onto the sheep leases, and told of the employment of men to drive any such back when found. Of course any of defendant’s horses found on the sheep leases were “trespassing” horses.

In the light of the facts and circumstances of the case, permitting the witness to use the term “trespassing” in the manner in which he used it was not prejudicial to the substantial rights of the defendant, and constituted harmless error. (Town of Meeker v. Fairfield, 25 Colo. App. 187, 136 Pac. 471.)

Finding no reversible error in the record, the judgment must be, and is, affirmed.

Mr. Chief Justice Callaway and Associate Justices Stewart and Anderson concur.

Mr. Justice Angstman, being absent, takes no part in the above opinion.  