Gillmor v. Gillmor

*462OPINION

BENCH, Judge:

Edward Leslie Gillmor appeals a judgment against him for trespass of his cattle and sheep on lands possessed by Stephen T. Gillmor. We affirm.

I.FACTS

The progenitors of the parties in these actions amassed 33,000 acres of ranch properties in four Utah counties. Common ownership descended one-half to Florence Gillmor, one-fourth to Charles F. Gillmor and one-fourth to Edward Leslie Gillmor. Prior to 1974, Edward leased the interests of Florence and Charles and operated his livestock business on the properties as a unit. In 1974, the three owners negotiated to separate their respective interests. Their efforts to divide the properties failed, and a partition action was filed. During the partition litigation, Edward continued to operate his livestock business on the common properties.

On February 14, 1981, the Third District Court entered a decree of partition. The 33,000 acres were divided into sixteen blocks. Each of the parties was awarded a pro rata share of acreage in each of fifteen blocks. The sixteenth block was ordered sold. The partition plan was basically upheld on appeal to the Utah Supreme Court in Gillmor v. Gillmor, 657 P.2d 736 (Utah 1982). Thereafter, Florence and Charles leased their three-fourths of the lands to Stephen T. Gillmor, the principal plaintiff in this case. While Stephen operated his sheep business on the three-fourths of Gillmor lands in his possession, Edward continued to graze the same number of livestock even after the partition.

After numerous instances during 1981 of trespass by Edward’s livestock onto Gill-mor land in Stephen's possession, Stephen, together with Florence and Charles Gill-mor, filed this action to recover damages and to enjoin further trespass. Edward counterclaimed for similar relief and filed an action, which was consolidated with Stephen’s, seeking a declaratory judgment that Stephen had no interest in certain leased grazing lands. Trial was held in October, 1983. Florence and Charles Gill-mor did not appear and took no active part in the litigation. During final arguments, Stephen submitted a trial brief on the issue of damages based on his calculations. In its memorandum decision, the trial court adopted Stephen’s calculations by reference, and the factors itemized became the court’s findings. The court also dismissed Edward’s counterclaim for trespass and his consolidated complaint with prejudice.

II.STANDARD OF REVIEW

On appeal, Edward argues the evidence was insufficient to support the damage awards to Stephen for forage loss and for decreased lamb production. This Court presumes the findings of fact of the trial court to be correct. Hal Taylor Assoc. v. Unionamerica, Inc., 657 P.2d 743, 747 (Utah 1982). It is not our function to make findings of fact because this Court does not have the advantage of seeing and hearing witnesses testify. Rucker v. Dalton, 598 P.2d 1336, 1338 (Utah 1979). On review, “this Court views the evidence and all the inferences that can reasonably be drawn therefrom in a light most supportive of the trial court’s findings.” Horton v. Horton, 695 P.2d 102, 106 (Utah 1984). Unless clearly erroneous, findings of fact will not be set aside, and, if there is a reasonable basis in evidence, a trial court’s award of damages will be affirmed on appeal. Utah R.Civ.P. 52(a); Katzenberger v. State, 735 P.2d 405 (Utah App.1987).

III.LOSS OF FORAGE

Stephen’s calculated damages for trespass by sheep, as submitted to the trial court, were as follows:

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For trespass by sheep, the trial court awarded damages only for $8,100.

Stephen’s calculated damages for trespass by cattle, as submitted to the trial court, were as follows:

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For trespass by cattle, the trial court awarded the full $17,504.04 as requested by Stephen.1

Edward does not challenge the fact that his livestock trespassed on Gillmor land in Stephen’s possession. Nor does Edward challenge the dollar value of an animal unit month (A.U.M.) used by Stephen in his calculations.2 Edward does argue that for Stephen to make a case for a definite amount of damages, he had the burden of proving (1) the number of trespassing livestock, and (2) the length of time that number of livestock trespassed on Stephen’s leased land. Edward contends Stephen failed to meet his burden. We disagree.

At trial, Edward and his son, as adverse witnesses in Stephen’s case and on their own behalf, both testified that prior to 1981, they historically grazed approximately 386 cattle and 2,700 sheep on all the Gillmor lands. After the partition decree in February, 1981, Edward continued to graze the same numbers of cattle and sheep despite the fact he had available to him only one-fourth the land he previously utilized. Other witnesses for Stephen testified although Edward was aware of the partition decree, he maintained he had a *464one-quarter ownership in all the land or that he owned one foot out of every four which he intended to use all year.

Stephen and his son both testified of numerous recorded instances during 1981 when they identified Edward’s livestock on their land. They spotted Edward’s livestock on their land once in March, eighteen times in April, once in June, six times in July, ten times in August, once in September, three times in October, five times in November and once in December. Stephen and his son spotted Edward’s cattle in numbers ranging from 300 head to a “small bunch” and sheep in numbers from 2,200 head to a “small bunch.”

Edward argues Stephen’s numerous recorded instances of trespass were insufficient to support the numbers of livestock and the duration periods used by Stephen in his calculations. Alone, the recorded instances probably are insufficient to support the damages awarded. However, when considered with all the evidence, the trial court could have reasonably inferred facts to support the damages. "A reasonable inference is a conclusion arrived at by a process of reasoning. This conclusion must be a rational and logical deduction from facts admitted and established by the evidence, when those facts are viewed in the light of common experience.” Bendorf v. Volkswagenwerk Aktiengeselischaft, 90 N.M. 414, 564 P.2d 619, 624 (Ct.App.1977). Furthermore, “inferences drawn from circumstantial evidence can be as probative as direct evidence.” Anderson v. Burlington Northern, Inc., 709 P.2d 641, 645 (Mont.1985). Edward admitted he stocked his one-quarter share of the land with the same number of livestock for which he previously required the entire land. His stepson told Stephen they had run out of lamb feed on their land. Coupled with Stephen’s documented evidence of trespass, this evidence reasonably supports the rational and logical conclusion that approximately three quarters of the time, Edward’s livestock would move onto the surrounding lands of Stephen Gillmor in search of food. Therefore, in his calculations, Stephen multiplied the number of A.U.M.’s by 75%.

Edward contends the trial court failed to take into account his use of separate leased grazing lands. Edward’s son testified 1,500 sheep were placed on separate leased land in early June and approximately 1,125 sheep remained on Gillmor land. Although Stephen’s calculations did account for the time the 1500 sheep were not on his land, the court did not award any damages for trespass by these sheep. Edward testified 217 head of cattle were on separate leased land from early June to mid-October. Stephen accounted for this time as well and was awarded the difference in damages. The trial court clearly did take into account the leased land.

The time periods utilized by Stephen in his calculations are also supported by the evidence. For the sheep, Stephen used the eight month period during which he and his son observed and recorded numerous instances of trespass. For the cattle, Stephen used March 17, 1981, the date the cattle were turned loose, as a beginning date and February 17, 1982, the date a stipulated preliminary injunction and order were issued, as an ending date.

Contrary to the view expressed in the dissenting opinion, we believe it would be unreasonable to require daily eyewitness accounts of trespass for Stephen to recover damages. The Utah Supreme Court has held:

Although an award of damages based only on speculation cannot be upheld, it is generally recognized that some degree of uncertainty in the evidence of damages will not suffice to relieve a defendant from recompensing a wronged plaintiff. As long as there is some rational basis for a damage award, it is the wrongdoer who must assume the risk of some uncertainty. Where there is evidence of the fact of damage, a defendant may not escape liability because the amount of damages cannot be proved with precision.

Bastian v. King, 661 P.2d 953, 956 (Utah 1983) (citation omitted). The findings of the trial court are not clearly erroneous *465and there is a reasonable basis in the evidence to support the damage award for loss of forage.

IV. DECREASED LAMB PRODUCTION

Edward next challenges the damages awarded for decreased lamb production. Stephen testified that due to overcrowding by Edward’s sheep on his land, he lost 150 lambs in Salt Lake County. Stephen also testified he lost 352 lambs when forced to take his herd to colder weather in Park City after discovering Edward’s sheep occupied the Swaner lease property Stephen claimed was leased to him. Stephen submitted the following calculated damages:

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The trial court found:

As a result of defendant’s utilization of lands rightfully in the possession of Stephen Gillmor, Stephen Gillmor suffered a decrease in his lamb production in the spring of 1981 in the amount of 352 head of lambs of a value of $23,340.3

Edward attacks this finding on two grounds. First, he claims that the finding of Stephen’s rightful possession to the Swaner leased land was not within the issues before the trial court. Second, he argues that the award of $23,340.00 in damages for lamb loss is not supported by the evidence. We reject both of these arguments.

The question of rightful possession of the Swaner lands was an issue properly before the trial court for resolution. Stephen’s complaint and first amended complaint both alleged that he was entitled to possession of certain leased lands, including those described as: “SWANER LEASE The NW ⅛ NW ¼, E ⅛ NW ¼, NE ¼ SE % NW ⅞⅛ SW ¼ of Section 32, Township 2 North, Range 1 West, SLB & M.” The record reveals an ongoing line of evidence about the Swaner land. Both parties contributed testimony and exhibits to support their respective claims to this lease-land during the 1981 lambing and grazing season.

Edward’s first contention is based on his May 5, 1981 initiation of Third District Court Case No. C81-3614, Edward L. Gillmor v. Robert B. Swaner, et al., five days before Stephen Gillmor filed his suit in the consolidated case before us. That *466action has never been prosecuted by Edward beyond the filing of his complaint and the answers of defendants, including Stephen Gillmor. Edward claims his filing of that lawsuit, which requested a declaratory judgment as to whether Edward or Stephen was Swaner’s 1981 lessee, somehow precluded any ruling on rightful possession to the Swaner lease in the case before us. Appellant has not propounded any legal theory or cited any authority to support this novel proposition, and we have uncovered none. Having actively participated in litigation of the Swaner lease issue at the trial of this action, Edward cannot now complain that the issue was not properly before the trial court. Cf. Gill v. Timm, 720 P.2d 1352 (Utah 1986); Loader v. Scott Const. Corp., 681 P.2d 1227 (Utah 1984).

Edward next claims that neither the finding of Stephen’s “rightful possession” of the Swaner leaseland nor the finding of “damages” caused by his trespassing sheep, in the form of decreased lamb production, is supported by the evidence. We conclude that these findings are not clearly erroneous, and we will not disturb them on appeal.

V. MISCELLANEOUS ISSUES

Edward also argues on appeal that the trial court failed to make findings of fact adequate to support the dismissal of his complaint in his consolidated action, which sought a declaration of his entitlement to possession and use of property referred to by the parties as the “church leases.” We dispose of this issue summarily by noting that the court below did make adequate findings on this point, even though the church leaselands were not specifically described.

We agree with the lower court that the evidence presented as proof of Edward’s counterclaim for trespass by Stephen’s livestock was inconclusive. All other issues raised on appeal are without merit.

Judgment affirmed.

DAVIDSON, J., concurs.

. We note Stephen erroneously calculated 3-17-81 to 2-17-82 as 10 months instead of 11 months. As Stephen received the damages he requested, we will not disturb the damages awarded.

. An A.U.M. is the value of the forage one cow or one sheep eats in one month. Because cows eat more than sheep, an A.U.M. for cattle is generally five times greater than an A.U.M. for sheep.

. Both parties point out to this Court the discrepancy between the finding and Stephen’s calculated damages. We conclude the "352 head” in the finding should read "502 head". Such clerical error is insignificant to the issues on appeal.