Anderson v. Locke

• Decision Date: 07 February 1887
• Citation: 1 So. 251,64 Miss. 283
• Court: Mississippi Supreme Court
• Parties: V. A. ANDERSON v. A. Y. LOCKE

1 So. 251

64 Miss. 283

V. A. ANDERSON v. A. Y. LOCKE

Supreme Court of Mississippi

February 7, 1887

APPEAL from the Circuit Court of Lowndes County, HON. W. M. ROGERS Judge.

A. Y Locke is a resident of supervisors' district No. 5 Lowndes County. Mrs. V. A. Anderson is a resident of Clay County, near the Lowndes County line. Mrs. Anderson's cattle were found trespassing upon the cultivated fields of Locke, which fields were without fences, and he took them up put them in his pasture, and immediately notified Mrs Anderson that she could get them by paying the charges fixed by an act of 1882 (Acts of 1882, page 232), entitled "An Act to prevent stock running at large in certain supervisors' districts of Lowndes County, this State." Mrs. Anderson, not having appeared, Locke delivered them up to one Fort, the nearest justice of the peace (who was also his father-in-law), and the cattle were sold by Fort. It is admitted that the act above referred to was throughout both the seizure and disposition of the cattle complied with. Mrs. Anderson first brought an action of replevin against Locke for the cattle, but afterward changed it into an action of assumpsit for their value and damages. The cause having been submitted to the court by argument, it was decided in favor of the defendant, Locke, and the plaintiff appealed.

Affirmed.

Barry & Beckett, for the appellant.

1. We insist the act of 1882, Acts 1882, pages 232, 233, does not apply to appellant. She was a citizen of Clay County, living near the Lowndes County line, and the statute only required the residents of districts No. 4 and 5, of Lowndes County, to keep up their stock. Acts 1882, page 232, § 1.

It does not provide for residents of Clay County keeping up their stock.

2. "At common law landowners were never bound to fence or inclose as against each other, but each was only bound to keep his stock on his own premises." Raiford v. M. & C. R. R. Co., 43 Miss. 240; 2 Black's Comm. 209-211.

Hence, at common law each owner was bound to keep up his stock, and not to fence his land. But the act of 1882 only requires "residents of supervisors' districts 4 and 5, of Lowndes County, to keep their stock within a safe inclosure, or otherwise confine or herd them." Acts 1882, page 232, § 1.

"It is well settled by reason and authority that the owners of cattle may permit them to go at large in this State without incurring any responsibility as trespassers." N. O., J. & G. N. R. R. v. Field, 46 Miss. 578.

3. If the taking of the cattle was legal it became illegal by attempting to turn them over to Fort, who was the nearest justice of the peace, it is true, but who was the father-in-law of the appellee, Locke. A justice cannot act in a case in which he is interested, however remotely, and the legislature could not authorize such a thing. Cooley on Const. Lim. marg. page 410-414.

William Baldwin, for the appellee.

As to the act of 1882, pages 232, 233, if that act applies to the cattle in question, there can, of course, be no liability on the part of appellee. The point, however, was attempted to be made by counsel, in argument of this case in the court below, that all parts of the statute having to be taken as a whole, and a harmonious unit made of it, that to accomplish that, § 1 of the act of February 15, 1882, Acts 1882, pp. 232, 233, must be held as a restraint upon the subsequent sections, and hence the penalty of the act could not be laid, save upon "persons residing in supervisors' districts 4 and 5, in Lowndes County."

It is submitted that the statute in its enacting part is plain and free from any doubt or ambiguity. It makes no exception in favor of cattle of contiguous districts or counties, and the courts can make none.

G. A. Evans, on the same side.

The main question here is, does the act of 1882 apply to cattle coming from Clay County? We confess ourselves at a loss to see why it does not. Certainly nothing in the act restricts it to cattle whose owners live in Lowndes County, or in district 5.

It would totally defeat the purpose of the legislature to so construe it.

The argument seems to be, that because the first section declares that "all persons residing in supervisors' districts 4 and 5" are required to keep their stock within an inclosure, and nothing is said about the...