Burnett v. Myers

• Decision Date: 15 August 1919
• Docket Number: No. 4560.,4560.
• Citation: 42 S.D. 233,173 N.W. 730
• Parties: BURNETT v. MYERS.
• Court: South Dakota Supreme Court

42 S.D. 233

173 N.W. 730

BURNETT

v.MYERS.

No. 4560.

Supreme Court of South Dakota.

Aug. 15, 1919.

Appeal from Circuit Court, Lincoln County; L. L. Fleeger, Judge.

Action by B. F. Burnett against Henry Myers. Judgment for defendant, and plaintiff appeals. Affirmed.Bogue & Bogue, of Parker, for appellant.

A. B. Carlson, of Canton, for respondent.

POLLEY, J.

Plaintiff is claiming damages alleged to have been caused by the trespass of defendant's hogs. The complaint does not allege that the action was commenced within 60 days after the infliction of the damages, as is required by the provisions of chapter 244, Laws of 1907, nor does it allege that plaintiff had given the defendant notice of the damage and the probable amount thereof, as is required by section 3 of that act. Defendant demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff appeals.

It is appellant's contention that his action is based upon a common-law right, and that he is entitled to recover, regardless of the provisions of chapter 244, Laws of 1907, that the remedy provided by chapter 244 is cumulative, and not exclusive, and that he is entitled to maintain his action without complying with the provisions of said chapter. It is true that so far as the substance of the right declared in said chapter is concerned, it is merely declaratory of the common law. Houska v. Hrabe, 35 S. D. 269, 151 N. W. 1021, L. R. A. 1915D, 1074. But chapter 244 goes further than to merely restate the common-law right; it prescribes the method of procedure to secure the remedy; it assumes to cover the whole subject-matter of damages caused by trespassing animals, including the rules of practice to be followed in such cases. It is clear, from the degree of minuteness with which the Legislature went into the whole subject, that the remedy provided was intended to be exclusive, and that it was the intent of the Legislature to repeal any existing provisions of that act. Halverson v. Glass, 36 S. D. 225, 154 N. W. 444.

Section 6 of the Civil Code (section 3, Code 1919) declares that the common law is in force in this state except where it conflicts with the statute. That section must be construed with the limitation contained in section 2472, Civil Code (section 10656, Code 1919), which declares that the Code establishes the law of the state respecting the subjects to which it relates. Chapter 244, Laws of 1907, is declaratory of, and establishes, the law of this state “respecting the subject to which it relates.” It defines the right and prescribes the remedy. The common-law right and remedy were necessarily coextensive. The statute covers both and necessarily excludes both as common law. Boston Ice Co. v. B. & M. Ry. Co., 77 N. H. 6, 86 Atl. 356, 45 L. R. A. (N. S.) 835, Ann. Cas. 1914A, 1094. The Supreme Court of New Hampshire, in discussing this question, said:

“When a statute revises the whole subject of a former one and is clearly designed as a substitute, the former law is repealed, although no express terms to that effect are used. Hillsborough County v. Manchester, 49 N. H. 57, 60;Opinion of...