Rood v. McCargar
Before: Crockett
Synopsis
Caite.® tíken Damage Peasant.—The Legislature has the power to'authorize hogs and cattle taken damage feasant, to be impounded by the owner of the premises and detained until the damages and costs are paid, and to give such owner a lien on the animals to secure such damages and costs.
Idem.—The question not decided, as to whether the Legislature has the power to authorize a constable, without any proceedings at law, to sell hogs or cattle taken damage feasant and impounded by the owner of the premises, and to apply the proceeds to the payment of damages and costs.
Pant oe an Act not Unconstitutionai.—If a part of an Act which is not subject to constitutional objections can be separated from the remainder, such part may be enforced, regardless of the remaining sections.
By the Court, Crockett, J.: The defendant being in the actual possession of a tract of land in Butte county, which he was holding and cultivating under an alleged lease from the plaintiff, found certain of the plaintiff’s hogs trespassing on his grain-field and destroying certain sacks of grain in the field. He thereupon drove the hogs into his corral, and posted notices at three [119]public places in the township, describing them by marks and brands, and notifying the owner to come forward, prove his property, pay the charges, and take the hogs away. He kept them in the corral for several days, feeding and taking proper care of them in the interim. At the expiration of this time, the plaintiff commenced the present action of replevin, without having previously demanded the possession, or offered to pay the charges; and the defendant having declined to give the necessary bond to entitle him to the possession pending the action, the hogs were taken by the sheriff and delivered to the plaintiff. At the trial, judgment was entered for the plaintiff for his costs; and the defendant appeals from the judgment and from the order denying his motion for a new trial.
In support of his appeal the defendant contends, first, that cattle damage feasant may be taken up under the rules of the common law, and held until the charges are paid; and it is claimed that this principle of the common law is in force here; second, that by the Act of March 26, 1857 (Statutes, 1857, p. 106), this rule of the common law was expressly re-enacted in respect to the County of Butte, and authorized the defendant to seize the hogs and hold them until the charges were paid. On the other hand, the plaintiff contends that the common law rule is not in force here, and that the statute is unconstitutional, because it deprives the owner of his property without due process of law.
The first section of the statute provides that if hogs be found trespassing upon the premises of any persons in certain counties, including Butte, between the first days of March and September, “the owner or proprietor of such premises may take up and safely keep, at the expense of the owner or owners thereof, all such hogs so found trespassing.” The second section provides that “all persons taking up hogs trespassing upon their lands, whether enclosed or not, shall immediately post notices in three of the most public places in the township, containing a description of the ear and other marks of the hogs, whereby they may be identified.” The next section provides that if the owner, within five days after the notices are posted, shall come forward and prove
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