LUIS GARCIA and MARIA GARCIA, His Wife, and CHABELLO GARCIA, Also Known as ISABEL GARCIA, Appellants and Cross-Appellees,
D. W. SUMRALL and G. L. SUMRALL, Appellees and Cross-Appellants
APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment reversed and case remanded with instructions.
Mr. Harry O. Juliani and Mr. William I. Martin, for Appellants and Cross-Appellees.
Mr. Lesley B. Allen, for Appellees and Cross-Appellants.
[58 Ariz. 528] LOCKWOOD, C.J.
This is an action by D. W. and G. L. Sumrall, plaintiffs, against Luis Garcia, Maria Garcia, his wife, and Chabello Garcia, defendants, to recover damages for an alleged willful trespass by defendants upon the lands of plaintiffs. A verdict was rendered in favor of plaintiffs in the sum of $5,500. The court, upon motion for new trial, ordered that the same be denied on condition that plaintiffs would remit $1,500 from the verdict, which was done, and judgment was rendered, whereupon defendants appealed.
[58 Ariz. 529] The facts necessary for a determination of the case may be stated as follows: Plaintiffs for many years had been engaged in the business of raising goats upon the open range in Pima County, Arizona. On January 27, 1937, they received a lease under what is commonly known as the Taylor Grazing Act, 43 U.S.C.A. § 315 et seq., from the United States government, covering sections 5, 6 and 7, township 12 south, range 9 east, and all of the north half of township 12 south, range 8 east, excepting the west half of section 13 and the east half of section 14, which exception we shall hereafter refer to as the Myers claim. A large portion of the north half of township 12, supra, lay within the boundaries of certain patented mining claims belonging to the American Smelting & Refining Co., and was particularly adapted to the pasturing of goats, being hilly land with a heavy growth of weeds and brush.
The lease from the government was for a period of one year, and before its expiration plaintiffs duly made application for its renewal, but on account of various delays the renewal was not formally granted until December 10, 1938, when a new lease for five years, covering the same land as the first lease, was delivered to plaintiffs. During the interregnum, however, they remained in possession of the land, no attempt being made by the government to terminate such possession in any manner, and during all the time from the beginning of the first lease up to the commencement of this action, they continuously pastured a large number of goats on the leased premises. During 1933, one Charles D. Myers, upon finding that the north half of township 12 south, range 9 east, supra, was unsurveyed, made a settlement entry and claim upon the land which we have described as the Myers claim. He took up a residence upon the land, [58 Ariz. 530] placed certain improvements thereon, and continued to reside there until January, 1937, when he died testate, naming his brother Edwin F. Myers as his sole beneficiary. The federal government recognized this claim and refused to include it in the land leased to plaintiffs.
Defendants for many years had been engaged in the cattle business in Pima County, Arizona, their home ranch being some six or eight miles to the southeast of the Myers claim, where they ran a considerable number of cattle. Shortly after Myers' death, they moved onto the Myers claim and converted his improvements into headquarters and a water supply for certain cattle which they had brought to, and turned loose upon, said claim. According to plaintiffs' witnesses, the number of cattle which defendants brought to the Myers claim was much greater than the land would ordinarily carry for grazing purposes. This, however was denied by defendants.
It is a well known fact, of which this court may take judicial notice, that cattle placed upon an open range of this nature, when the feed or water thereon becomes insufficient, will naturally and by instinct drift in all directions in search of feed and water. The south half of township 12 south, range 8 east, was Indian Reservation land, and there was a fence along its north and east side, which prevented the cattle on the Myers claim from drifting to the south. The Myers claim, when defendants first occupied it, was thus open on the north, east and west, and surrounded on those sides by land contained within the lease above referred to. This leased land to the east, however, was only half a section in width, but to the north and west covered several thousand acres. Some distance north of the Myers claim the [58 Ariz. 531] ground became very rocky and precipitous, and of such a nature that cattle would not readily climb thereon or cross it. Defendants built a fence tied to the Indian Reservation fence on the south, and running in a northerly direction along the east boundary of the Myers claim and for a distance beyond its northeast corner. Defendants testified this extension was but a few feet and made only for an anchorage, while plaintiffs' witnesses described it as from a quarter to half a mile in length and extending to the rocky ground above described. If the extension was as described
by these last witnesses, the natural and, indeed, practically inevitable result of this fence was to prevent the cattle on the Myers claim from drifting back to the east and to compel them, when feed or water was exhausted on the Myers claim, to wander upon the leased land of plaintiffs to the north and northwest.
On May 25, 1940, plaintiffs filed this action, alleging in substance as follows: They set up their leases as aforesaid, and that they had continuously held gazing rights upon the land since January 27, 1937, ranging their goats thereon. While they were so doing, defendants entered upon Myers claim, converting the improvements into headquarters for carrying on the cattle ranching business, installing a pumping equipment and reservoirs thereon, and constructed the drift fence as above referred to, and drove a large herd of cattle upon the Myers claim and the lands of plaintiff to the west thereof. Shortly after the cattle were so placed, and as soon as plaintiffs had knowledge thereof, they advised defendants of their leases and that the latter were trespassing upon the rights of plaintiffs in building the drift fence and in pasturing the cattle upon the lands. Notwithstanding such warning and advice, "the said defendants have continued [58 Ariz. 532] since July, 1937, to at all times place, herd, ...