Bileu v. Paisley

• Decision Date: 05 March 1889
• Parties: BILEU et al. v. PAISLEY.
• Court: Oregon Supreme Court

21 P. 934

18 Or. 47

BILEU et al. v. PAISLEY.

Supreme Court of Oregon

March 5, 1889^[1]

Appeal from circuit court, Crook county.

(Syllabus by the Court)

The rule of the common law that every man's land was inclosed, either by a material fence or by an ideal invisible boundary, and that every unwarrantable entry thereon by a person or his cattle is a trespass by breaking his close, was not founded on an arbitrary regulation, but was considered as incidental to the ownership. It resulted from the principal that the owner had a right to the enjoyment of his land free from molestation or interference by others, whether its boundary consisted of an artificial structure only in contemplation of law; and the rule need not be adopted, in order to be in force wherever the principles of the common law are extended. It is in force in all places where the right of private dominion over things real is recognized; it attaches to the ownership of property.

The legislature had authority, under the police power of the state, to require every man to inclose his land by a fence built in a prescribed manner, and it may refuse him a remedy for a trespass by cattle entering upon it in consequence of his neglect to comply with such requirements, but it cannot authorize one man to pasture his stock upon the land of another, whether fenced or not; it may withhold the remedy but it cannot grant the right.

The statutes of Oregon, which require fields and inclosures to be inclosed with certain kinds of fence, and provide a remedy in case stock or swine shall break into the same when so fenced do not apply to ditches constructed across public lands in the state for mining purposes.

Hence the owner of sheep may be held in damages for injuries by reason of the sheep running over the same, in the absence of proof that they were purposely or negligently driven thereon although the ditches were unfenced.

Where the plaintiffs, in an action to recover damages done to ditches used for mining purposes, in consequence of sheep running over the same, proved that they were engaged in mining, and had been using the ditches in the prosecution of their business during the two previous mining seasons. Held, that it was such a possession of the premises as would enable them to maintain trespass against the entry of one having no right.

Whether the manager of sheep, who is not the owner of them, is responsible to a third party of not, for any acts of the herders which are done without his knowledge or authority, and contrary to his directions, depends upon his relations with the owner in regard to the matter.

If he is a mere intermediate agent between the master and the direct agent, he cannot be held constructively responsible for the acts of the latter. But if he is intrusted with the direct charge and control of the sheep as a bailee, and employed the herders to assist him in the performance of his trust, and they are subject to his control and direction, then he would be so responsible for their acts, done within the scope of their employment, although done without his knowledge or authority, and contrary to his direction.

Bennett & Wilson, for appellant.

Geo. W. Barnes and S.T. Richardson, for respondents.

THAYER C.J.

This appeal is from a judgment recovered in an action brought by the respondents in said circuit court against the appellant, to recover damages done to two certain ditches by the appellant's sheep. The ditches were constructed across the public lands of the United States in said county of Crook, and used for mining purposes. One of them is about four miles long, two feet wide, and three feet in depth; the other one is about one and one-half miles long. The respondents alleged that they owned and were working certain mining grounds, and were owners of and using the ditches for the purposes of conveying water to their mines. They also alleged that the appellant kept, herded, and drove a certain band of sheep, which he owned and controlled, over and across said ditches, whereby they were damaged in the sum of $1,200. The appellant in his answer denied that the sheep were herded or driven by him upon or across the ditches; denied that he was the owner of the sheep; denied any damages to the respondents whatever; and alleged that the ditches were the property of Tim Baldwin; that they were situated upon the unclaimed government land of the United States; were uninclosed; and were upon the open public commons of the country. The respondents in their reply denied that the ditches were situated upon unclaimed lands of the United States, or that they belonged to Baldwin, and alleged that they were upon lands claimed by them for mining purposes.

At the trial the respondents gave testimony tending to prove that they had been using the ditches, during the mining seasons, since 1885, but they made no further proof of their ownership of them. The respondents also gave proof tending to show that the four-mile ditch was filled up with rocks, sticks, and trash rolled down into it, as sheep would roll down such things on hill sides; that the sheep ran on the ditches for two years; that in going on the ditches for water they would find them dammed up by sheep, and sometimes find sheep on them; and that the appellant had control of the sheep. The appellant gave testimony tending to show that he did not own the sheep; that they belonged to one McAllister; that appellant had the general management of them, but was absent most of the time, and they were left in charge of the camp-tender, who looked to McAllister for his pay; that appellant instructed the camp-tender and herders to be careful, and keep the sheep off the ditches. When the respondents' evidence was submitted, the appellant's counsel moved for a non-suit, and renewed his motion again after the evidence in the case was closed; but the court overruled the motion, and the jury returned a small verdict in favor of the respondents, upon which the judgment appealed from was entered.

The issues made by the pleadings were whether the respondents owned the ditches; whether the appellant owned the sheep; whether the sheep did damage to the ditches; and whether they were driven upon them by the appellants, or by his directions. These were all questions of fact, and have been determined against the appellant by the jury; and, unless he can show that there was no evidence to sustain the finding of the jury, he will be concluded thereby.

The counsel for the appellant presents three questions on the appeal for the consideration of the court. First, whether the owner of sheep can be held in damages for injuries done by them to an unfenced ditch, running across the public commons by reason of the sheep going onto the same, in the absence of proof that they were purposely or negligently driven thereon; second, whether the simple fact that the respondents had been using the ditches in question, without any other proof of ownership or possession, was sufficient proof of title to sustain a recovery; third, whether the manager of sheep, who is not the owner of them, is responsible to a third party for the acts of the herders, which are done without his knowledge or authority, and contrary to his directions.

The common law was decisive of the first question. Blackstone says: "Every unwarrantable entry on another's soil the law entitles a trespass by breaking his close; the words of the writ of trespass commanding the defendant to show cause quare clausum fregit. For every man's land is, in the eye of the law, inclosed and set apart from his neighbors; and that either by visible and material fence, as one field is divided from another by a hedge; or by an ideal, invisible boundary, existing only in contemplation of law, as when one man's land adjoins to another's in the same field. And every such entry or breach of a man's close carries necessarily along with it some damage or other; for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz., the treading down and bruising his herbage." 3 Comm. *209, *210. Again: "A man is answerable for not only his own trespass, but that of his cattle also; for if, by his negligent keeping, they stray upon the land of another, (and much more if he permits or drives them on,) and they there tread down his neighbor's herbage, and spoil his corn or his trees, this is a trespass for which the owner must answer in damages; and the law gives the party injured a double remedy in this case, by permitting him to distrain the cattle, thus damage feasant or doing damage, till the owner shall make him satisfaction; or else by leaving him to the common remedy in foro contentiose, by action." Id. *211. Chief Justice BEARDSLEY in Railroad Co. v. Munger, 5 Denio, 259, in delivering the opinion of the court, said: "Every unwarrantable entry by a person or his cattle on the land of another is a trespass, and that whether the land be inclosed or not." Citing Wells v. Howell, 19 Johns. 385; 1 Chit.Pl. 94, 95; Browne, Actions, 369. "It is a general rule of the common law that the owner of cattle is bound, at his peril, to keep them off the land of other persons, and he cannot justify or excuse such an entry by showing that the land was unfenced. Fences were designed to keep one's own cattle at home, and not to guard against the intrusion of those belonging to other people." Citing Gale & W. Easm. 297; Rust v. Low, 6 Mass. 94; Bush v. Brainard, 1 Cow. 79, note.

But counsel for the appellant contends that the rule of the common law in that respect is not in force in this state, and he cites a number of cases from different states also Campbell v. Bridwell, 5 Or. 311, decided in this court, to sustain his position. In the latter...