Show COURT burrows vs kaia ml lami case A SECTION A suit for damages for trespass is brought TUESDAY AFTERNOON at 3 james metcalf was called in tha bur lowb kimbau case hi testified to becoming acquainted with the land in 1887 there was no wire fence anoual it then thera was a bercs around it to turn stock thera were ditched oa abo land mr kimball built the wire fence there afterwards the pole fence did not have any gaps in so far as vitnest could tel on cross examination he changed the time of becoming acquainted with the land te he cut hay for miller brothers on the land iu 1889 john gatherum worked on u rail through the land in 1887 the land was they were guttins up a wire fecca at that time saw air burrows and his bons eons wor kiu on ditches on the land perry curtis first saw the land in i 1884 saw a fence on the east side and the bauth sido in saw a feuce on the w cat about three yearn ago joseph castle testified to abe land being enclosed six years ago on croba he testified to the post holes for mr kimball in 1887 ace did not remember that abe other fea y had adv gaps in it wm L burro s the first faccine was done in 18 54 when I 1 left in 1886 the ci ataide was doted except or ten rudd on the south bide it waa faai ed except one or two panela there wat agomo fence on the north but no danee on tha west no wira fence was on he inside then when I 1 cam ack in 1868 abe feucht had been completed on the west and nonh in mr kimball came in to cut grass I 1 forbid aim cutting grass on behalf of mv father mr Kiu iball said that was all right he would to ahead and cut aa much as he pleased on crosb examination he testified that mr kimballs Kim balls hands had cut hay on tha jand in 1889 when I 1 came back there was two wire fence ahe land 0 G kimball claimed the bention iu dispute in 1887 there waa hay there iu mr tucker and mr cut hay there but not ayaay authority 1 did not forbid them cutting J cut hay in may have cut 6 ton hav wai worth about eight dollars a tun cut about tha latter part of july or tha latter part of august I 1 claimed the quarter motion as the abent of frank L kimball the defense offered a record of surrey which had been filed with the county recorder of emery cauntay under a territorial rit orial of january 19 1885 thi waa to show claim the judge ruled against the admission of the record of aulvey the plaintiff akkad leave to amend lh complaint bv inserting the nay of instead af 1889 the defense objected the amendment was allowed the defendant then amended the aa awer and pleaded iha statute of limitation abo plaintiff waived claims for bub and the of the atthe land became the aalt for the jury to consider daid burrows waa called by the and testified tosti fied to the fencing of the land as the other witnesses had HR lu iricea beinin put up and made before mr caine on the land david kinnear saw the land in worked on the railway the land yas bened to by kotlier tes t es there ily ona fence when I 1 farat went there there waa fence placed inside of the pule fence about a monio after I 1 beut there cross examined saw costs left by mr kimball to bunij a when I 1 arat went up there the rested mr zane moved or a nonsuit on the ground that the plaint fuhad not proven prior oa to recover ander this action air Z an e read from alie statutes to show what 18 necessary in order to buim owner shio by mr i claimed the land was enclosed in coune cuon other land and that air krinbill Kiin bill through a gip g ip in mr burred Burr wd feuce and built hr own acin e the motion waa overruled over ruled and an exception t tarn 0 G we by hie 1 denue col hav on the land in 1884 there lacni tf at that libie clial prevented nae from i land cut hav in 1885 in I 1 ant through mr Sli lierd tance re was a eap the north end of the east side and other gaps fish creek did not form a natural barrier I 1 acted as agent of P D kimball tha defense again offered the record of survey 10 abow color ef and argued in tavor of its admission the record of survey was finally permitted to go in as claim of title an exception was taken after the survey was made in I 1 began to haul posts for a fence out abo ep ine it is a two wire fence it will generally turn stock robert bishop and mr hardy lived on the land last summer I 1 did not object to it cattle have run on that land dur ins the yeara testified to cloea examined could sec by the fence already there when I 1 put up my fence that aume eume one claimed the land bought hay from one of the harrews in the hay wa liken foni the tree culture gound g the fence I 1 put up may have becu broken down the next year 1 repaired the and hardy are not living on tha land under mv direction court adjourned till WEDNESDAY the farat district court met at 0 G kimball was recalled n the burroni vs kimball cgee lie resti fina I 1 to building a house on the land in dispute at a cost ot and the fence cost him the house was occupied by his men when they were haying clr burrows cams to pleasant valley to live in 1883 he has never lived on adv part of the section part of the fence on the baat side was built in 1885 and part in there wera papa in the fence in mr Kim balla fence was there never aaa any fences along fish creek previous to 1889 peoples cattle ran on that land in 1887 an lr kimball tried to keep th cattle off mr burrows also dhove cattle off in and the grass ia not aa good au it was in 1884 aaa mr kimball with his men in a tent the regin 1885 and 1886 james tucker have been acquainted with th school bention in question aiace 1881 the cattle got into the section principally from the north side the creek did not act as a natural barrier against cattle haye cut hav on the section dont know if it was on the borrowa quarter section in question the fence waa down in in crops I 1 went through millera fence onto the land I 1 did not think mr burrows had adv right to fence in the land I 1 turned mv stock on the aw this fall mr burrows in 1889 or 1888 tried to impound my cattle tor running on the land I 1 told both mr burrows and mr kimball to throw the baad open I 1 have bought hay fr ora mr burrows dont know what quarter section it cama fram R P miller know the land in dispute dont think irrigation ia necea aary to hav on tha land the hay in 1888 and 1885 wa as good ax it baa ben aiace in 1888 there was fence pot along komg facea of the creek to cattle from cr but not in all places where cattle could cross on croaa mr miller testified aa a practical that it waa beneficial to the land to hav water brought on it the defense rested W C burrows the plaintiff testified that irrigation was beneficial to the land this closed the testimony and mr sutherland for tho plaintiff argued the case before the jury he was followed by mr in for the defendant mr hautz tha case for the plaintiff badge blackburn instructed the jury that if plaintiff was in actual and exclusive occupancy of the laud with or without an enclosure they should find a verdict for the plaintiff and for the deion dant court instructed the jury as to what constituted occupancy r exceptions were taken to the instruct tiona by the attorneys for both aides court took a receda till 2 |