Soares v. Ghisletta

SPENCE, J.

Plaintiffs sought damages in the sum of $540 for the alleged conversion of twelve heifers. Defendant denied the conversion and alleged by way of affirmative defense that he had taken up the heifers and had subsequently caused the sale of the same pursuant to the provisions of the Estray Act. (Deering’s Gen. Laws, Act 387.) Upon a trial by the court sitting without a jury, defendant had judgment and from said judgment plaintiffs appeal.

Several points are raised by appellants but we do not believe that all of said points require extended discussion. Two of the main contentions are, first, that the heifers were not estrays within the meaning of the Estray Act and, second, that there was no competent evidence to show a compliance by the respondent within the provisions of said act.

With respect to the first contention appellants concede that the heifers had left the ranch of appellants and were trespassing unattended upon the adjoining ranch of respondent at the time they were taken up. It is claimed, however, that the heifers were not estrays as their owner was known to respondent at the time. Conceding that the ownership was known, we are nevertheless of the opinion that said heifers were estrays within the meaning of said act. The word “estray” is not one which has had the same meaning at all times and in all localities. (See Webster’s New International Dictionary.) Its meaning at common law and also under the statutes in this state was the subject of an extended discussion in

Yracebum

v.

Gape,

60 Cal. App. 374 [212 Pac. 938], On pages 380 and 381 of the opinion the court there said: “The act as thus amended remained in force until the year 1915, when it was again amended by the substitution of an entirely new set of sections for those embodied in the original act of 1901 and of its said amend

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ment in 1909 and from which substituted sections the definition of the term ‘estrays’ as above quoted was omitted, and the term was apparently used in its original signification, with the exception that under the act of 1915 in order to constitute animals estrays it was not necessary that the ownership of such animals should be unknown to the person finding and impounding such animal. (Stats. 1915, pp. 636, 637.) ” (See, also, 2 Cal. Jur., p. 41.) From a reading of the statute and the authorities cited, we are satisfied that the present act covers animals belonging to known as well as to unknown owners.