Logan v. Gedney

Sprague, J„, delivered the opinion of the Court: The question presented on this appeal was directly raised on appellant’s- motion for nonsuit in the Court below, after plaintiff had closed his testimony and rested his case.

The action is based upon a statute of this State, entitled “An Act to restrict the herding of sheep ” (Statutes 1861, p. 523), as amended March 28, 1868 (Statutes 1867-8, p. 426), the first section of which reads 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 claim of other than the land or possessory claims of the owners of such sheep. ” The fourth section modifies the first, as follows : “Nothing in this Act shall be construed .to prohibit or prevent the herding of sheep upon any unoccupied lands of -this State or of the United States.” The second section renders the persons guilty of the acts prohibited by the first section liable to the party injured in damages to the extent of such injury for the first offense, and in double damages for the second and every subsequent transgression.

The acts here denounced as unlawful, and for which a party is held responsible in damages, are the direct, aggressive, volitive acts of such party himself, or his agent, as the terms employed to designate the prohibited act necessarily imply. “It shall not be lawful for any person or persons [581]owning or having charge of any sheep to herd the same, or permit them to he herded;” etc. To herd, as here used, is a transitive verb, having for its subject person or persons, and for its object sheep).

The rule of the common law of England, that every man is bound to keep his beasts within his own close, under the penalty of answering in damages for all injuries resulting from their being permitted to range at large, never was the law in California.

The first Legislature of the State, before adopting the common law of England as the rule of decision for the Courts of the State, when not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, had passed the Act “concerning lawful fences and animals trespassing on premises lawfully enclosed.” (See Statutes 1850, page 131.) This fence law of March 30, 1850, is, by necessary implication, directly in conflict with and repugnant to the above rule of the common law of England. So, also, is the Act of April 13, 1850, “concerning marks and brands,” passed one day before the Act adopting the common law as a rule of action. (Statutes 1850, p. 214.) The same is true with reference to the Act “to regulate rodeos,” and the Act “concerning Judges of the Plains, ” passed at the second session of the Legislature, in 1851, and many, subsequent special Acts on the subject of lawful fences, including the Act of April 28,1859, “concerning lawful fences in the Counties of San Bernardino, Colusa, Shasta, Tehama and Placer,” which is still in force. (Waters v. Moss, Trustee, etc. 12 Cal. 535; Comerford v. Dupuy, 17 Cal. 308; Richmond v. Sac. Val. R. R. Co. 18 Cal. 355.)