Blevins v. Mullally

The plaintiffs were given judgment enjoining the defendants from “causing, allowing or permitting their cattle or stock, or other cattle or stock in their custody or under their control, from entering and trespassing upon the lands of plaintiffs, situated in Colusa County,” and described in the complaint, and awarding damages against the defendants in the sum of three hundred dollars for the alleged trespassing of their cattle and stock upon said land prior to the commencement of this action.

This appeal is by the defendants from the judgment so rendered and entered and from the order declining to grant their motion for a new trial.

The plaintiffs are the owners of a large tract of uninelosed land, situated near the town of Arbuckle, in Colusa County, which they have used for many years and were using, at the time of the commencement of this action, for sheep raising purposes.

The defendants own a large tract of land situated in the neighborhood of and in close proximity to the lands of the plaintiffs.

A general demurrer to the complaint was overruled and the defendants answered, specifically denying the averments of said complaint and, furthermore, by way of a special defense, alleged that the lands of plaintiffs described in the complaint were uninclosed and not planted to growing crops, or fruit trees or vines, etc. A cross-complaint was also filed by the defendants, claiming damages against the plaintiffs for taking up the cattle of the defendants, keeping them with insufficient food and refusing to deliver over to the defendants the cattle so taken up when the latter appeared and demanded the possession 'of the same, and offered to pay the plaintiffs the amount which they were entitled to claim as damages, expenses, and costs, under the act relating to estrays above referred to.

1. At common law, “every unwarrantable entry on another’s soil the law entitles a trespass by breaking his close, the words of the writ of trespass commanding the defendant to show cause quare clausum- querentis fregit.” ( 3 Black. 210 .) And this was true whether the land was inclosed or uninclosed, the same learned authority saying: “For every man’s land is, in the eye of the law, inclosed and set apart from his neighbor’s; and that either by a visible and material fence, as one field is divided from another by a hedge, or by an ideal, invisible boundary existing only in contemplation of law, or when one man’s land adjoins to another’s in the same field.” Under the rule as thus stated, a party was answerable not only for his own trespass, but that of hi.s cattle also; “for, if by his negligent keeping they stray upon the land of another (and much more if he permits or drives them on), and they there tread down his neighbor’s herbage, and spoil his corn and trees, this is a trespass for which the owner must answer in damages.” (Id.)

On the 13th day of April, 1850, the first legislature which convened after the adoption of the constitution of 1849 passed a law whereby it was declared that “the common law of England, so far as it is not repugnant to or inconsistent with the constitution of the United States, or the constitution or laws of the state of California, shall be the rule of decision in

In 1863 the legislature passed an act which applied solely to the county of Santa Clara, providing for the taking up of all kinds of domestic animals found upon the farm, “or other inclosed premises,” and for damages for such trespasses. (Stats. 1863, p. 581.) In 1872 the legislature amended said act in several particulars. (Stats. 1871-2, p. 580.) Among these amendments was that of the first section, which was made to so read as to authorize any person finding any of the domestic animals therein specified “upon his farm, land or other premises,” to demand and receive the damages for the trespass as prescribed by section 2 of said act. This act was considered by the supreme court in the case of Hahn v. Garratt, 69 Cal. 146 , [ 10 Pac. 329 ], and held to have had the effect of restoring to Santa Clara County the common-law rule as to trespassing animals.

The legislature of 1877-8 passed an act entitled “An act concerning trespassing of animals upon private lands in cer

The effect of the foregoing act, so far as were concerned the counties to which it was applicable, was to repeal the act entitled “An act concerning lawful fences and animals trespassing on premises lawfully inclosed” (Stats. 1850, p. 131), the act to “regulate Rodeos” (Stats. 1851, p. 445) and the act “Concerning Judges of the Plains.” (Stats. 1851, p. 515.) In fact, the result of the passage of said act was to restore the operation of the common-law rule as to trespassing animals to those counties or portions of counties to which its operation was limited.

From the foregoing review of the legislation in California bearing upon or affecting the main question involved in this controversy, these propositions are obviously deducible: 1. That, up to the time of the passage of the amendments in 1872 of the act of 1863, the rule of the common law of England respecting trespassing animals was never the rule of decision as to that subject in any portion of California; 2. That the statute of 1863, as amended in 1872, revived the vitality of that rule in the county of Santa Clara only, and that the statute of 1877-8, produced a like effect solely in those few counties designated therein; 3. That, with respect to Santa Clara County and the several counties,- including Colusa County, mentioned in the statute of 1877-8, the common-law rule upon the subject of trespassing animals still prevails, unless subsequent or more recent legislation than that to which we have above referred affecting the question

The latest expression of the legislature directly relating to the subject under consideration is to be found in an act entitled “An act concerning trespassing animals upon private lands, and the recovery of damages resulting therefrom,” approved March 23, 1907. (Stats. 1907, p. 999.)

There is also the estray law of 1901 (Stats. 1901, p. 603), which act was amended in some particulars in 1909 (Stats. 1909, p. 1079 et seq.), and parenthetically it may here be stated that counsel for the plaintiffs make the claim that the effect of the passage of said law was to revive the operation of the rule of the common law respecting trespassing animals in this state.

The first section of the statute of 19-07 reads as follows:

“Section 1. It is unlawful for any person, firm or corporation owning, or having possession of, any animal, to suffer or permit such animal to break into and enter upon any land owned by, or lawfully in the possession of any person, firm or corporation, other than the owner of such animal, in all' cases where such land is planted to growing crops, vines, fruit trees or vegetables, and is at the time entirely inclosed by a substantial fence or other inclosure. ”•

The succeeding sections prescribe the damages which may be recovered for the trespasses mentioned in section 1 and the means whereby the enforcement of any judgment -obtained in actions brought under the provisions of the act may be coerced without the necessity of observing some of the requisites essential to the enforcement of ordinary judgments in certain cases.

The sixth section of the act reads: “All acts and parts of acts in conflict with this act are hereby repealed; provided, nothing in this act shall be deemed or construed to repeal an act of the legislature of this state relating to estrays, approved March 23, 190-1.”

We are not impressed with the suggestion that the estray law of 1901, either in its original -draft or as amended by the legislature -of 1909, had the effect of reviving the eommon-lavr

The pivotal question here, however, is as to the effect of the passage of the trespass act of 1907 upon previous legislation relating to that subject.

It is argued by the defendants: 1. That, under the rule of construction, expressio unkts, est exclusio alterius, the legislature, having, by the act of 1907, limited the application of the common-law rule respecting trespassing animals, must be taken to have excluded, ex industria, the right to maintain actions for damages for the trespasses of domestic animals upon lands either uninclosed or inclosed but not planted to growing crops or fruit trees, etc. In other words, the position of the defendants is this: That, since it is true that the common-law rule that “every man must, at his peril, keep his beasts within his own close,” has never prevailed or existed as a general rule in this state (Hahn v. Garratt, 69 Cal. 146 , [ 10 Pac. 329 ], and Merritt v. Hill, 104 Cal. 184 , [ 37 Pac. 893 ], and the other cases cited above), the rule established by the statute of 1907 (which is a general law and, so it is claimed, designed to have a uniform operation), is a limitation of the right to invoke the common-law rule in its entirety, and that, therefore, no action for damages resulting from the trespass of cattle or other stock upon private lands will lie or can be maintained, unless such trespasses are shown to have been committed upon lands which, at the time the injury is committed, are planted to growing crops, vines, fruit trees or vegetables, and entirely inclosed by a fence or other substantial in closure; 2. That the section of the act of 1907 which expressly repeals “all acts and parts of acts in conflict with this act,” necessarily repeals the act of 1877-8, because, while the latter act recognizes the full force of the common-law rule, the former expressly limits the application of said rule to special or a particular class of cases, and that there is, there

The whole question here is manifestly one of legislative intent. Did the legislature, by the act of 1907, intend to stop the operation of the common-law rule as to trespassing animals in Colusa and other counties to which said rule was restored by the act of 1877-8 ?

Section 1 of article XXII of the constitution of 1879 provides, inter alia, “that all laws in force at the adoption of this constitution, not inconsistent therewith, shall remain in full force and effect until altered or repealed by the legislature.”

It is not claimed, nor so far as we are advised, could it be claimed, that the act of 1877-8 above referred to is inconsistent with any of the provisions of the present constitution of the state. Therefore, said act is the subsisting law in those counties to which it applies, unless the effect of the passage of the act of 1907 has been to repeal it.

It must be admitted that there appears, upon its face, to be considerable force in the contention that, the legislature having apparently intended, by the passage of the act of 1907, to establish a general rule for the whole state, the effect of the passage of said act was to set aside or abrogate any other rule existing prior to and at the time of the passage of said act upon that subject; or, in other words, since, in practical effect, the legislature has, by said statute, adopted a part only of the common-law rule respecting trespassing animals, the parts thereof not so adopted were intended to be excluded as parts of the law of this state, and that if, when that act was passed, the common-law rule in its entirety prevailed in California, or in any of the political subdivisions thereof, then the effect of the passage of said act was to abrogate said rule as it thus existed and to substitute therefor the part so adopted. That argument, we say, is plausible, but it is by no means conclusive, and, perceiving, as must readily be perceived, the serious consequences which would certainly flow from upholding it, it should not be sustained unless it plainly appears from the language of the statute, when tested by the usual or ordinary canons of statutory construction, that no other course is open or at all permissible.

The case of Triscony v. Brandenstein, 66 Cal. 514 , [ 6 Pac. 384 ], may be cited as bearing upon and in a measure sustaining the proposition above suggested. The court in that case had under consideration a statute, passed by the legislature of 1873-4 (Stats. 1873^4, p. 50), “to protect agriculture and to prevent the trespassing of animals upon private property in the counties of Fresno, Tulare, Kern, Ventura, Santa Barbara, San Luis Obispo and Monterey,” which provided that the owner of the land upon which the animals of another were found trespassing could take' the same up, and upon the failure of the owner of the animals, after having been given the required notice, to pay the taker-up the damages prescribed by the act, the latter was authorized to institute and maintain, either in the justice’s court or the district court, according to the amount of damages claimed, an action based on the statute against the animals themselves, in rem, for the recovery of such damages. In the case just cited, the plaintiff brought an action in the district court against the owner of the animals found upon the former’s

Now, there can be conceived no sound or substantial reason why the legislature should purposely or intentionally have taken from the counties to which the statute of 1877-8 was made exclusively applicable the right to the protection against trespasses afforded by the operation therein of the full force of the common-law rule. A sufficient reason, it must be assumed, prompted the legislation of 1877-8 which had the effect of reviving in those counties the force of the common-law rule, after the long period prior thereto during which it appeared to have been the legislative judgment that said rule should not so operate or have force. We find, in the case of Hahn v. Garratt, 69 Cal. 146 , [ 10 Pac. 329 ] some pertinent expressions upon this matter. It was there said: “When the common law was adopted in 1850, it was made

The foregoing language was used in considering the effect of the amendments made to the estray law of 1863, which applied exclusively to Santa Clara County, by the legislature of 1871-2, and is explanatory of the motive of the legislature in modifying from time to time the legislation which was repugnant to the common-law rule respecting trespassing domestic animals. Necessarily, as conditions changed so that, instead of the stock-raising business being the paramount industry of California, agricultural and horticultural interests grew to be important factors in the promotion of the material prosperity of the state, the legislative policy with regard to trespassing animals was changed accordingly, and various special acts, or statutes applying to certain counties only, were enacted to meet the exigencies of the new conditions brought about by the introduction of those industries. Thus it was, we must assume, that the legislature was actuated in the passage of the statute of 1877-8, which, as seen, restored to Colusa and the few other counties to which that act was made to exclusively apply the rule of the common-law that every man must so take care of and control his domestic animals as to prevent them from trespassing upon and damaging the close of another, no matter whether the same was or was not protected by an inclosure. We think we are authorized to assume that the conditions which called for the enactment of the statute of 1877-8 are now no different in the counties to which said statute was made applicable from what they were at the time of the passage of the act. Indeed, that the horticultural and agricultural interests of those counties and, for that matter, of the whole state have been

But, if the foregoing view of the effect of the act of 1907 be correct, the question naturally suggesting itself is: Why did the legislature so frame said statute? Why did it appear thus to limit the right to maintain actions for trespass upon lands to lands surrounded by the conditions specified in the act? Counsel for the plaintiffs declare that, by the act, the legislature, without intending to interfere with the operation of the common-law rule in those counties in which, by the authority of special statutes, it prevailed when the act of 1907 was passed, merely designed to provide a “summary or extraordinary remedy” in the cases mentioned therein. But the remedy thus provided is neither summary nor extraordinary. It is the plain, ordinary remedy for the recovery of damages for trespass upon lands planted to growing crops,

But, after all, there is no repugnancy or inconsistency between the common-law rule and the statute of 1907. Indeed, the rule promulgated by said act is itself the common-law rule. It is true that it limits the application of said rule to certain special cases, but this cannot create a repugnance or inconsistency between the rule as it is proposed to be used by the statute and the rule as it is declared in the common law. The repugnancy which must exist between our constitutions or local laws and the rule at common law, in contemplation of section 4468 of the Political Code, must be such that it is impossible that the two can exist and operate at the same time without infringing upon the province of each other. The two must, in other words, be directly opposed to each other, and this cannot be said to be true in the case here.

2. The facts disclosed by the evidence justified the granting of the injunction.

The defendants kept their cattle upon their lands situated near the lands of the plaintiffs. Much of the lands of the defendants, like those of the plaintiffs, was uninclosed. These cattle were never herded, were allowed to roam at will, and the result was that they repeatedly wandered upon the lands of the plaintiffs and were frequently taken up by the latter under the estray law. The defendants were always notified when their cattle were thus taken up, damage feasant, but never seemed to have taken any steps to prevent their further trespassing upon the lands of the plaintiffs. As the complaint alleges, so the evidence shows, that the plaintiffs were

Thus we have here a case where the injunctive jurisdiction of a court of equity may justly be invoked upon two distinct grounds, viz.: 1. Irreparable injury, because the property destroyed (the herbage or feed) cannot be replaced so as to accomplish the immediate purpose for which it was being used, to wit, the feeding of the sheep; 2. Repeated acts of trespass necessitating a multiplicity of actions at law for damages. “The principle determining the (equity) jurisdiction embraces two classes of cases,” says Professor Pomeroy, in his work on Equity Jurisprudence, section 1357, “and may be corectly formulated as follows: 1. If the trespass, although a single act, is or would be destructive, if the injury is or would be irreparable—that is, if the injury done or threatened is of such a nature that, when accomplished, the property cannot be restored to its original condition, or cannot be replaced, by means of compensation in money—then the wrong will be prevented or stopped by injunction. 2. If the trespass is continuous in its nature, if repeated acts of wrong are done or threatened, although each of these acts, taken by itself, may not be destructive, and the legal remedy may therefore be adequate for each single act if it stood alone, then also the entire wrong will be prevented or stopped by injunction, on the ground of avoiding a repetition of similar actions. In both cases the ultimate criterion is the inadequacy of the legal remedy.” (See Daubenspeck v. Grear, 18 Cal.

For the reasons herein stated the judgment and order are affirmed.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 3, 1913.