Cramer

— Plaintiffs began this action to recover damages suffered by reason of trespass on lands leased by plaintiffs of certain sheep and cattle belonging to the defendant and recovered damages in the sum of $2,59.

The complaint is in three counts. No question is raised as to the judgment of the trial court awarding the plaintiff the sum of $34 on account of damages inflicted upon the premises leased to the plaintiffs by cattle belonging to the defendant. The argument of the appellant and all questions raised upon this appeal are directed to the alleged error of the trial court in awarding damages to the plain *271 tiffs in the sum of $225 for pasturage destroyed upon the premises leased to the plaintiffs, by reason of the defendant permitting 600 head of sheep belonging to him to graze thereon.

The third count of the plaintiffs’ complaint involved in this appeal, so far as pertinent hereto, is as follows:

The premises described are premises previously alleged in the complaint to be under lease to the plaintiffs. The damages recovered under this allegation are the sum of $225. No demurrer was filed by the defendant and no question as to the sufficiency of this allegation of the…

— The appellant on petition for rehearing herein calls attention to the fact that there is no testimony *277 supporting the finding of the trial court that the sheep committing the trespass alleged to have taken place on the seventh day of May, 1924, were the sheep belonging to the defendant and, also, that there is no testimony that the defendant knew of such trespass.

The trial court found that on or about the seventh day of May, 1924, the defendant Reese T. Jenkins, by his agents, representatives, and servants herded and grazed about 250 ewes and lambs upon the premises (described as belonging to the plaintiff) without first having obtained consent of such owner or of the tenants in possession.

The appellant’s opening brief contains the following statement: “There is absolutely no testimony to support the second finding that the defendant herded and grazed sheep upon plaintiff's lands, but as the .court finds that there was no damage for his so-called trespassing, there is no use of discussing that point.” The second finding above referred to is the finding of the court which we have just set forth. There being no further argument made by counsel for appellant upon said…

Plaintiffs began this action to recover damages suffered by reason of trespass on lands leased by plaintiffs of certain sheep and cattle belonging to the defendant and recovered damages in the sum of $259. The complaint is in three counts. No question is raised as to the judgment of the trial court awarding the plaintiff the sum of $34 on account of damages inflicted upon the premises leased to the plaintiffs by cattle belonging to the defendant. The argument of the appellant and all questions raised upon this appeal are directed to the alleged error of the trial court in awarding damages to the plaintiffs *Page 271 in the sum of $225 for pasturage destroyed upon the premises leased to the plaintiffs, by reason of the defendant permitting 600 head of sheep belonging to him to graze thereon. The third count of the plaintiffs' complaint involved in this appeal, so far as pertinent hereto, is as follows: "That on or about the 9th day of May, 1924, defendant permitted about six hundred ewes, together with lambs following them, to graze upon the SW. 1/4 of said Section 9, without having first obtained the consent of said owner or of the tenants in possession, Edward G. Cramer and John…