Davis v. Blasingame

RICHARDS, J.

This is an appeal from a judgment in plaintiff’s favor in an action for damages for the alleged trespass of the defendant’s cattle upon the lands of the plaintiff and another, and the consequent depasturing of the same. The complaint contains two causes of action, one relating to the depasturing of the plaintiff’s own lands, and one relating to the depasturing of t'he lands of another who assigned his cause of action to the plaintiff. The defense consists in a denial of the allegations of both counts of the complaint. The evidence educed upon the trial showed that the parties to the action were neighbors living in the eastern foothills of Fresno County, and owning tracts of land of considerable acreage in propinquity to each other. With the exception of about three hundred acres, the lands of the plaintiff and his assignor were uninclosed, and the defendant pastured his stock repeatedly upon these uninelosed lands after warning to desist from so doing. The trial court rendered judgment in the plaintiff’s favor for the damages in the sum of $1,003.35, with costs of suit.

[459]

The only two points urged by the appellant upon this appeal are, first, that no recovery can be had for the depasturing of land in Fresno County unless the land is fenced, and, second, that even if such an action is maintainable it must be commenced within sixty days after the commission of the trespass. The determination of these points requires an inquiry into the state of the statutory law, and the decisions construing the same, in relation to fences upon pastoral lands in the county of Fresno. This inquiry may well begin with the case of

Blevins

v.

Mullally,

22 Cal. App. 519, [135 Pac. 307], in which Mr. Justice Hart, after a very thorough review of the statutes and cases bearing upon the subject, holds that the rule of the common law which required every man to beep his beasts within his own close, was abrogated by the legislature of this state in 1850 (Stats. 1850, pp. 131, 214), and was for a time thereafter not in force in any of the counties of the state of California, but that commencing in the year 1863 the rule of the common law began to be restored to operation by special acts in that and later years, applying to an increasing number of the counties of the state as conditions changed therein from a pastoral to an agricultural or horticultural state. The first county to be thus affected was the county of Santa Clara (Stats. 1863, p. 581, as amended by Stats. 1871-72, p. 580). In the case of