PLUMMER, J. — 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:
“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. 14 of said Section 9, without having first obtained the consent of said owner or of the tenants in possession, Edward G. Cramer and John C. Cramer.”
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 complaint appears to have been raised in the trial court. The answer of the defendant, so far as pertinent to the issues involved herein, contains the following:
“As a further, separate and distinct defense . . . , defendant alleges that on the 9th day of May, 1923, defendant, through his agents and employees, was driving a band of sheep owned by the defendant on lands not owned or controlled by the plaintiffs, bordering lands then owned by the Cramer Livestock Company, a corporation of the state of California, and leased by the plaintiffs; that said lands of plaintiff were fenced with a wire fence and that the wires of said fence were so high that sheep could easily pass thereunder; that while defendant was so driving his sheep on said lands not belonging to, or leased by the plaintiffs, about 600 head of ewes and lambs went under said fence and onto a corner of said lands leased by said plaintiffs.”
It is further alleged that the defendant attempted to drive his sheep from said premises, but that said sheep were driven by the plaintiffs therefrom and placed in a corral by the plaintiffs.
Upon the basis of this allegation it is argued that as the testimony shows that plaintiffs’ lands were not inclosed by a lawful fence, as described by an act of the legislature of 1855 (Stats. 1855, p. 154), no liability rests upon the de[272]fondant for any injuries inflicted by his sheep upon crops growing upon the leased premises occupied and cultivated by the plaintiffs. Considerable testimony was introduced as to the character of the fence, constituting the inclosure of the plaintiffs’ premises, sufficient to show that the fence so existing failed to comply in many particulars with the act of the legislature just referred to, but from the views herein expressed, the condition of the fence, or its failure to comply with the specifications set forth in the act of 1855, become immaterial.
The record shows that the plaintiffs and the defendant had leased from the Cramer Livestock Company adjoining premises; the plaintiffs leased premises suitable for cultivation, or which they were cultivating, the defendant had leased adjoining premises suitable for pasturage purposes, and which were being used by him for such purposes. The record shows that on or about the seventh day of May, 1924, the defendant’s herders had herded and driven a band of sheep to and upon the premises adjoining the lands and premises belonging to the plaintiffs, and that while so doing, about 200 sheep passed under the fence in question on to the premises belonging to the plaintiffs, but the trial court held that no damage resulted from this incursion of the defendant’s sheep. Following this, the record shows that on or about the ninth day of May, the herders employed by the defendant had in charge a band of sheep numbering some 1,200, brought them to within the vicinity of the plaintiffs’ premises, where 200 from said band of sheep had made an incursion upon the lands leased by the plaintiffs two days previously; that the herders were moving said sheep over the premises leased by the defendant for pasturage purposes and in the direction of where the sheep might obtain water; that while so doing, about 600 of said sheep, in the language of the defendant’s answer, “got away from the herders, went under said fence and onto the lands and premises leased and occupied by the plaintiffs, ’ ’ causing the damages found by the trial court. From this it is argued that the defendant is not liable on the ground, first: That the plaintiffs’ premises were not inclosed by a lawful fence, and, second, that the court had nothing before it justifying a finding that the defendant permitted his sheep to graze upon the lands and premises leased by the [273]plaintiffs. The recital of the facts, as above set forth gleaned from the record, shows that the defendant was herding his sheep upon adjoining premises; that two days previous to the infliction of the damages ascertained and assessed by the trial court, 200 of said band of sheep passed under the fence in question and on to the leased lands occupied by the plaintiffs; that the herders went upon the lands and premises and drove the sheep from the lands and premises belonging to the plaintiffs, under the wire fence referred to in this action; that notwithstanding this knowledge of the condition of the fence thus acquired on the seventh day of May, 1924, the herders employed by the defendant brought the same band of sheep to the same vicinity, where 600 of them went under the same fence and inflicted the damage complained of.
We feel that these facts show that the defendant’s herders had full knowledge of the condition of the fence, of the propensity of sheep to forage upon the lands of the premises and that when they voluntarily brought a large band of sheep to the same vicinity on the ninth day of May, 1924, the trial court was justified in finding that the defendant permitted said sheep to graze upon the lands and premises leased by the plaintiffs, within the intent of the act of the legislature herein referred to. Knowing the condition of the fence, knowing what the sheep had previously done, the defendant’s herders voluntarily brought the defendant’s sheep to the same vicinity. It has been held in this state that when a band of sheep is in charge of herders, the sheep are not considered as running at large. (Spect v. Arnold, 52 Cal. 455; 2 Cal. Jur., p. 47, sec. 31.)
It is argued upon appeal for the first timfe that the complaint in this action does not state facts sufficient to constitute a cause of action, in that there is no allegation that the premises leased by the plaintiffs were inclosed by a lawful fence, or that the defendant wrongfully or unlawfully permitted the sheep to be herded upon the premises leased by the plaintiffs or permitted them to be grazed upon the premises leased by the plaintiffs. As stated, no demurrer was interposed to the complaint, and if technically insufficient as against a demurrer, the record, taken as a whole, shows that the defendant has not been misled or suffered any prejudice on account thereof and, therefore, [274]under the provisions of section 4% of article VI of the constitution, it cannot be held grounds of reversal.
By the act of the legislature, approved May 18, 16'61 (Stats. 1861, p. 523), it is provided as follows:
‘ ‘ It shall not be lawful for any person, or persons, owning, or having charge of, any sheep, to herd the same, or permit them to be herded, on the land, or possessory claims, of other than the land, or possessory claims, of the owners of such sheep.”
This act contains four other sections, section 2 of which was amended by the act approved March 28, 1868 (Stats. 1867-68, p. 426). The amendment relates only to recovery of damages and does not limit or modify any of the language contained in section 1 of the act of 1861, which we have just quoted. By act, approved May 11, 1919 (Stats. 1919, p. 464), the legislature, in relation to the herding of sheep, further enacted (sec. 1):
“It shall be unlawful for any person or persons to herd or graze any livestock upon the lands of another in the counties of Plumas, Lassen and Modoc without having first obtained the consent of the owner or owners of the land so to do; provided, that the person claiming to be the owner of said lands has the legal title thereto, or an application to possess the same, with first payment made thereon.”
This act does not purport to repeal any of the sections of the previous act of 1861, but is supplemental thereto in that, instead of being limited to the grazing or herding of sheep, it includes “any livestock,” thus being broadened in its scope and not in conflict. The act of 1861 and the act of 1919 do not limit the application thereof, or of either of them, to lands inclosed by a lawful fence, as specified by the act of 1855, supra. Whether premises are inclosed or uninclosed, if there is anything in the case showing that the owner of sheep, or of any livestock, has voluntarily done or permitted to be done any acts from which the trial court may conclude that the livestock has, within the intent and meaning of either statute been herded or permitted to be herded upon the lands and premises of another, without such person’s consent, then and in that case, the owner of the animals so herded, or permitted to be herded, is liable. Our attention is called to the ease of Logan v. Gedney, 38 [275]Cal. 579, as conclusive upon the questions involved on this appeal and necessitates a reversal of the judgment of the trial court. In that case the complaint was founded upon the act of the legislature of 1861, as shown by the opinion of the court, and alleged as follows: “Defendants wrongfully and wilfully permitted said sheep to be herded, and did herd the same upon the lands of which the plaintiff then was, ever since has been, and still is the owner.” It was held by the court that the complaint was sufficient and that if the defendants had been guilty of the acts charged, a cause of action would have been stated, but that the evidence showed that the defendants’ sheep without “their agency, knowledge or consent, while running at large at night, strayed into the plaintiff’s barley field, which was not protected or inclosed by a lawful fence, or any sufficient fence to obstruct the free ingress or egress of sheep and hogs.”
These facts readily distinguish the case of Logan v. Gedney from the case at bar. There the court held that the sheep strayed without the agency, knowledge or consent of defendants while running at large. In the case at bar the sheep were not running at large. They were being herded upon pasturage lands adjoining the lands and premises leased and occupied by the plaintiffs, were taken to the place from which they made their incursion upon the crops owned by the plaintiffs voluntarily by the defendant’s herders, after knowledge acquired two days before of what the sheep would do, and what they might anticipate the sheep would do, which brings into operation the agency, knowledge, and practical consent which the court held wanting in the ease of Logan v. Gedney. To hold that the owner of sheep may be permitted to drive his band of sheep and herd his band of sheep to and alongside the premises belonging to another, having knowledge of what said band of sheep had done two days previously is not, within the intent of the law, herding said band of sheep upon the premises of another, when 600 of said sheep brought in such dose proximity to the premises of another, go upon such premises and proceed to graze, or are grazing without the permission, consent or agency of the defendant within the true intent and meaning of section 1 of the act of 1861, would be to hold that the act of the legislature is without force or vitality, [276]and all that a defendant has to do is to drive his sheep up to the line dividing his lands and premises from the premises of another, and then and there quit and abandon his duty as a herder and let the sheep wander at will. Such is not the meaning of either the act of 1861 or the act of 1919. If the agency of the defendant places the sheep in that position alongside of the premises belonging to another, following their natural instincts, of which the owner of the sheep, or herder thereof, must be held to have knowledge, the sheep will proceed to graze the land and forage upon the premises of another, we think that, under such circumstances, the trial court is justified in holding that the sheep are being herded and are being permitted to graze upon the lands of another, in violation of the acts of the legislature which we have quoted, and that unless previous consent has been obtained so to graze the sheep belonging to him, the defendant, under such circumstances, is liable for the damages inflicted. The question of a lawful fence does not enter into this case.
In answer to the argument of counsel as to the meaning of the word “permit,” it is sufficient to refer to 30 Cye. 1461. Under the definitions there given, we find the following applicable to this case: “To allow or suffer to be done; to allow to be done by consent or by not prohibiting; to suffer or allow without prohibition or interference; to allow after notice or knowledge; to allow by silent consent or by not offering opposition or hindrance.” Other definitions are given, but one of the above stated, to wit: “To allow after notice or knowledge” is pertinent here, as the defendant’s agents had notice and knowledge of what might be expected from driving and herding the sheep to within such close proximity to the lands and premises owned by the plaintiffs.
The judgment of the trial court is affirmed.
Hart, J., and Finch, P. J., concurred.
A petition for rehearing of this cause was denied by the district court of appeal on May 11, 1927, and the following opinion then rendered thereon: