Cunningham v. Reynolds

PULLEN, P. J.

Plaintiff brings this action in claim and delivery for the recovery of 169 ewes claimed to be wrongfully withheld by the defendants, together with special damages for the difference in value between the market lambs and feeder lambs alleged to have been lost through the wilful acts of the defendants. Defendants, by their answer, justify their detention of the ewes under the terms of the Estray Act (Deering’s General Laws, 1931, p. 177, Act 387), and claim a lien thereon for damages, costs and expenses, as provided by the statute.

The 169 ewes of plaintiff, of the stipulated value of $350, strayed upon the lands of the defendants, who impounded them as provided in the act. On the day following their impoundment, plaintiff tendered to defendants the sum of $35 to cover the costs, damages and expenses, and demanded their return. This offer was rejected and the return of the sheep refused.

It was stipulated, subject to a motion to strike, that the reasonable cost per day of keeping and caring for the sheep was three cents. It was also established by testimony not contradicted, that range sheep, as were the ewes here in question, would produce 100 per cent lamb crop. These ewes, at the time of their impoundment (September 4th), had not-been bred, and to produce a market lamb it was necessary to have them bred not later than September 15th. A market lamb was described as one that could be sold fat from the side of the ewe; whereas, a feeder lamb required additional feeding to make it ready for market. The difference in price between a market lamb and a feeder lamb was established at $1.50 per head more for the market lamb than the feeder.

Defendants base their refusal to accept the tender of plaintiff upon their construction of section 3 of the Estray

[93]

Act, which provides: “3. . . . Any person claiming such strayed animal or animals shall . . . pay the taker-up the damages, expenses and costs incurred. . . . Such damages, expenses and costs shall be estimated as follows. ... 3. The sum of not to exceed fifteen cents per day for the keeping ■and care of each . . . animal.”

Defendants contend they are entitled to fifteen cents per day, regardless of the actual damage or expense they may have suffered, while appellant maintains that the taker-up can recover only his actual expense and damage, not to exceed fifteen cents per animal. The latter is undoubtedly the intention of the act. It is not a penal statute, but is for the purpose of giving to one who has impounded estrays a speedy remedy for the recovery of damages and costs incurred in taking up trespassing animals.