Bowden v. Davis

• Decision Date: 09 November 1955
• Citation: 205 Or. 421,289 P.2d 1100
• Parties: Walter BOWDEN, Respondent, v. Oscar DAVIS and Buck Parmele, Appellants.
• Court: Oregon Supreme Court

Page 1100

289 P.2d 1100

205 Or. 421

Walter BOWDEN, Respondent, v. Oscar DAVIS and Buck Parmele, Appellants.

Supreme Court of Oregon, En Banc.

Argued May 3, 1955.

Reargued Oct. 25, 1955.

Decided Nov. 9, 1955.

Harold Banta, Baker, argued the cause for appellants. On the brief were Banta, Silven & Horton, of Baker.

W. E. Schroeder, Vale, argued the cause for respondent. On the brief were Lytle, Kilpatrick & Schroeder, of Vale.

Robert Y. Thornton, Atty. Gen., and John D. Nichols, Asst. Atty. Gen., filed a brief as amicus curiae, urging reversal.

TOOZE, Justice.

This is an appeal by defendants Oscar Davis and Buck Parmele from a judgment in favor of plaintiff Walter Bowden in an action to replevin 17 head of branded horses, 2 unbranded colts, and 2 branded mules, alleged to be of the reasonable value of $2,625.

The complaint, filed February 28, 1952, contains the usual allegations of ownership and right to immediate possession of the animals in question, particularly describing them, and also the wrongful and unlawful taking of possession thereof by defendants, and the withholding possession from plaintiff 'under claim that the animals were running at large and were gathered under contract with the Bureau of Land Management'. The complaint also alleges a demand for possession by plaintiff and a refusal to deliver possession by defendants.

By their answer defendants admitted 'that plaintiff is the owner of the horses therein described, subject to the rights of defendants therein as hereinafter set forth'; admitted 'that the defendants took possession of said horses and held the same until retaken by the plaintiff under claim and delivery proceedings herein, and that defendants' holding thereof was based upon the claim that the animals were running at large and were gathered under contract with the Bureau of Land Management'; alleged 'that prior to being rounded up, the said horses had been running at large on the public domain for several weeks at least'; admitted 'that after being rounded up, the said horses were held by defendants and in their possession, within what is known as the Cochran Ranch corral and that plaintiff was so advised'; admitted their refusal to deliver possession of the animals to plaintiff upon his demand 'with the qualification that defendants' refusal to deliver the said horses to the plaintiff was not absolute, but merely until the roundup charges had been paid'; and alleged affirmatively that said property was held for an assessment pursuant to statute; that is to say, the roundup charges fixed for gathering said animals. Except as admitted, defendants denied the allegations of the complaint.

For a further and separate answer and defense, defendants affirmatively alleged the following:

'I.

'That there are situated within Malheur and Harney counties, State of Oregon, a large amount of public domain, comprising many thousands of acres, which is administered by the U. S. Grazing Service, a division of the Bureau of Land Management, Department of the Interior under the Taylor Grazing Act, and that Grazing District No. 3 has been set up pursuant to law to administer such lands or a portion thereof, with headquarters at Vale; that pursuant to the law and regulations of said Department, a District Range Manager is appointed by such government agency to administer, generally manage and supervise the lands within the said grazing district. That during all the times and dates herein mentioned, A. K. Hansen has been and now is District Range Manager in charge of grazing district and agency.

'II.

'That during and prior to the year 1951, a large number of horses were found to be running at large upon the public lands within the boundaries of said grazing district, being public lands of the United States, without any permit or license of any kind, and the said Grazing Service of the Bureau of Land Management, through the appropriate officials thereof, decided that such horses should be rounded up and impounded and disposed of as provided by law, and for such purpose, on or about November 15th, 1951, acting through the said A. K. Hansen, District Range Manager, thereunto duly authorized entered into an appropriate contract and agreement with the defendants, who were in all respects fit and competent persons therefor, to round up, collect and impound such horses; that under and by the terms of such agreement among other things, these defendants were appointed agents of the Bureau of Land Management Grazing Service, for the purpose of rounding up and impounding such horses, and their gathering or roundup fee for so doing was fixed and established at $25.00 per head, which sum included the brand inspection fee and advertising costs, which were to be assumed and paid by defendants, and that such charge was and is fair and reasonable charge under the circumstances; that such contract contemplated that said drive or roundup would begin on December 3rd, 1951, and continue until all such horses within the area upon the open public range had been removed or [sic] December 1st, 1952.

'III.

'That prior to such roundup the said Bureau of Land Management, Grazing Service, the agency causing the said horses to be gathered, had fixed and established a roundup charge of $25.00 per head, to be paid to the defendants as the persons authorized by such agency to carry on the roundup, and payment of such sum by the owner of the animals rounded up would entitle such owner to retake possession thereof, and had confirmed the same as aforesaid in the said contract with the defendants. That prior to such roundup the State Department of Agriculture of the State of Oregon was duly notified and such Department caused James Barrein, a brand inspecter [sic] duly employed and appointed, pursuant to the laws of such state in the area in which the roundup was being conducted to be present and inspect all horses rounded up for brands. That prior to such round-up the said Bureau of Land Management, through the said Hansen, District Range Manager caused a notice to be published of such fact in the Malheur Enterprise, a newspaper of general circulation in the area where the round-up was to be held. That such notice was published twice, more than ten days prior to the time the round-up was to begin (on November 22nd and 29th, 1951) and was in words and figures as follows:

'[Copy of notice.]

That such notice was in all respects duly and regularly published and stated the date the roundup was to begin, and the place where horses collected in the roundup were to be held. It also stated that persons claiming ownership of any such horses might retake possession of such horses running at large without license or permit of any kind, upon payment of the established roundup charge which was therein set forth.

'IV.

'That following December 3rd, 1951, (the date so fixed for the beginning of such roundup) pursuant to such contract, the defendants proceeded to round up horses running at large upon the public domain and among other horses, found and rounded up the horses belonging to the plaintiff and described in paragraph I of plaintiff's complaint, between the dates of February 24th and 26th, 1952. That such horses when so found and rounded up were and according to the best knowledge and belief of these defendants had been for several weeks at least prior thereto running at large upon public lands of the United States within the boundaries of such grazing district, and within the area designated in such notice without any license or permit whatsoever.

'V.

'That after rounding up such horses and placing them in said corral at the Craig Cochran ranch south of Rome, the defendants caused the plaintiff to be personally and actually notified thereof forthwith on said February 26th, 1952, and that instead of paying the roundup fee and reclaiming his horses as required by law, the plaintiff refused to pay the roundup fee and immediately commenced this action and caused the said animals to be forcibly taken from the defendants' possession without their consent by process of law under claim and delivery proceedings instituted herein.

'VI.

'That by reason of the premises the defendants were lawfully in possession of the said horses when this action was brought, and were and are entitled to remain in possession thereof until their roundup fees, at the rate of $25.00 per animal or a total sum of $525.00 for the twenty one animals involved herein, has been paid, and to hold a lien thereon or dispose of such animals as by law provided or as the Bureau of Land Management may direct, unless such roundup fee is paid.'

Plaintiff's demurrer to the affirmative defense of defendants, based upon the ground that it did not state facts sufficient to constitute a defense to plaintiff's cause of action, was sustained by the trial court. No amended answer having been filed by defendants, plaintiff's motion for judgment in his favor upon the pleadings was allowed, and judgment was entered accordingly. It is from this judgment that defendants appeal.

The affirmative defense pleaded by defendants is based entirely upon the provisions of ch. 211, Oregon Laws 1951, ORS 607.405 to 607.435, known as the horse roundup statute. By his demurrer plaintiff asserted and, on argument, contended that the statute is unconstitutional and void. The trial court so held. Therefore, the only question for decision on this appeal is whether the roundup statute is constitutional.

The material sections of that statute provide:

'Secton 1. When any horses are found to be running at large upon any public lands within this state without license or permit of any kind, such animals may be rounded up by any agency of the State of Oregon or of the United States having the management or control of such lands and the horses impounded and disposed of as provided in this Act. For such purpose an agency may enter into agreements with competent persons to round up, impound and dispose of...