Dooley v. Seventeen Thousand Five Hundred Head of Sheep

VANCLIEF, C. This action in rem was brought to recover $7,500 damages, alleged to have been suffered by plaintiff in consequence of trespasses of the defendant sheep upon 9,460 acres of uninclosed lands of the plaintiff, situate in the county of San Luis Obispo; and is based upon an “Act concerning trespassing of animals upon private land in certain counties,” approved March 7, 1878 (Stats. 1878, p. 176). It is alleged [480]in the complaint that the defendant sheep are marked or branded as follows: 3,500 of them, J H; 3,500, J O; 3,500, A A; 3,500 P; and 3,500, ; and that the owners of the defendant sheep are unknown to plaintiff. The trespasses are alleged to have been committed at divers times between December 1, 1892, and March 6, 1893.

The action was commenced March 13, 1893, and on the same day a writ of attachment was issued to the sheriff of Kern county (which is not one of the counties to which the act applies), commanding that sheriff to attach all the sheep above described, “or so much thereof as may be sufficient to satisfy the plaintiff’s demand as above mentioned,” unless the owners give security, etc. A summons directed to the^ defendant animals was also issued, and served by posting a copy thereof on the courthouse door from March 13th until March 24th. On March 24th the sheriff of Kern county attached 3,000 of the defendant sheep, 1,500 of which were marked J O, and 1,500 marked A, by seizing them and placing them in the hands of a keeper. On March 29, 1893, the owner of the sheep attached appeared by attorney and demurred to the complaint; and, the demurrer being overruled, the defendant answered, denying all the material averments of the complaint. The court found the alleged trespasses to have been committed by the following sheep: “About 2,500 sheep branded A A, and about 2,000 head of sheep branded J O, and about 2,500 sheep branded (triangle), by treading down and depasturing all of said lands, and the grass and herbage thereon growing. That the value of said grass and herbage so destroyed was and is twenty cents per acre for each and every acre of said land, and the plaintiff was thereby damaged by the said destruction of said grass and herbage in said sum of $1,892.” And also found that Gracian Solaberry was the owner of about 2,000 of the sheep branded J O, and about 2,500 of those branded (triangle), including the 3-,000 attached by the sheriff of Kern county. At the close of the evidence, upon motion of plaintiff, the action was dismissed as against the 3,500 sheep branded P, and the 3,500 branded J H. It was thereupon ‘ ‘ ordered and adjudged that there is due the plaintiff, as found by the court, the sum of. $1,892 damages, and costs of suit,” and “further ordered and adjudged that the defendant sheep levied on and held in at-