Moran v. Freeman

BURNETT, J.

The action was for damage caused by trespassing sheep, and the judgment was for plaintiffs in the sum of $408. Appellant states that the only point raised by him is that the court erred in overruling his demurrer to the complaint, and his contention is “that the complaint does not state a cause of action because nowhere in said complaint is it alleged that the land upon which crops of the respondents were growing was, at' the time of the alleged trespass, inclosed by a fence.” In that respect the averment of the complaint is: “On or about the twelfth day of February, 1919, plaintiffs were the owners of a -growing crop of peas . . . ; and on or about said date aforesaid, and while plaintiffs were such owners of said pea crop aforesaid, defendant did willfully and wrongfully suffer and permit his band of sheep, consisting of many hundreds in number, to trespass and feed upon said crop of peas and did thereby tramp down, eat and otherwise destroy said crop to plaintiffs’ damage in the sum of six hundred dollars.”

[1]

It is the claim of appellant that the rule of the common law allowing the owner of real property to recover damages for trespassing of stock, although said real property may not be inclosed, was abrogated by the legislature of this state in 1850 and has never been re-enacted, at least as far as Yuba County is concerned. He claims further that the only statute in reference to the matter which applies to said county is found in the statutes of 1876, page 210. He proceeds to argue that this statute does not restore the common law but provides only a special remedy, giving the owner of the land a right to take up and impound the trespassing stock, and in such case only has he the right to

[516]

commence an action against the stock or the owner for damages. Appellant is in error in the claim that the rule of the common law is not applicable to said county. Whatever may have been the situation prior to that date, since August 8, 1915, the said rule of the common law has been in force in this state in all the counties except six thereof, not including Tuba County. This is by virtue of the statute passed by the legislature May 20, 1915, and taking effect on said August 8, 1915, and found in the statutes of 1915, page 636. That this statute is operative to restore the common-law rule has been distinctly decided by the supreme court in