Hahn v. Garratt

Belcher, C. C. This was an action to recover damages for trespasses committed by the defendant’s cattle upon the plaintiffs’ crops. The plaintiffs’ land was situate in Santa Clara County, and was not inclosed.

At the trial the defendant asked the court to instruct the jury that the plaintiffs could not recover without first showing that the premises on which they claimed the trespasses were committed were inclosed by a substantial fence, sufficient to prevent the ingress of stock, or that the defendant had voluntarily and intentionally herded his stock upon the plaintiffs’ land.

The court refused so to instruct the jury, but did instruct them as follows: “In this county a man is not bound to fence his land against the trespasses of the [147]cattle of his neighbor; the owner of the cattle in this county must fence in his cattle, or in some way keep them from trespassing upon his neighbor’s premises. .... In this case, it makes no difference whether the plaintiffs’ premises were inclosed with any inclosure or not; the defendant was bound to take such care of his cattle as would prevent them from trespassing upon the premises of plaintiffs.”

The refusal to instruct .the jury as requested, and the giving of the above instructions, constitute the only errors assigned in the case.

It is claimed for the appellant that the rule of the common law of England, which required every man to keep his cattle within his own close, and made him liable in damages for all injuries resulting from their being permitted to range at large, has never prevailed in this state, and counsel cite, in support of this view, Waters v. Moss, 12 Cal. 535, Comerford v. Dupuy, 17 Cal. 308, and Logan v. Gedney, 38 Cal. 581.

When the common law was adopted, in 1850, it was made the rule of decision in all the courts of this state, so far as it was not repugnant to or inconsistent with the constitution of the United States or the constitution or laws of this state. At that time the principal industries of the state were mining and cattle-raising. To encourage and promote these industries, acts were passed by the legislature, before the adoption of the common law, which have been held to be inconsistent with some of its rules, and, among others, with that above referred to.

Since then, farming and fruit-raising have become important industries, and to encourage and protect them, special acts have been passed for some of the counties, which in effect restored the rules of the common law.