Martin v. Jacobs

ROSS, J. The statute under which this action was brought —act of March 20, 1878 (Stats. 1877-78, p. 360)—makes the defendant liable for the acts charged in the complaint and proved and found against him in the court below; that is to say, the willful entry by the defendant, with cattle and horses, upon land belonging to and in the possession of the plaintiff and depasturing the same to plaintiff’s damage. The first section of the act reads:

[283]“If any horse, mare, mule, jack, jenny, hog, sheep, goat, or herd of neat cattle, or any number of such animals, shall break into or enter upon any private lands, whether inclosed or not, the owner of or person keeping, harboring, or controlling such animals shall be liable to the owner or .possessor of such lands for the amount of all damages caused by such trespass; or, when the trespass is continuing in its nature, for all damage caused by such continuing trespass; such damages to be recovered in a civil action brought for that purpose.”

In addition to the remedy given by the section just quoted, subsequent sections of the act provide for a lien upon the trespassing animals under certain circumstances, and when such lien is asserted, for notice to the owner of the stock. But those provisions do not apply to the present case. The evidence is sufficient to sustain the findings.

Judgment and order affirmed.

We concur: McKinstry, J.; McKee, J.