Campau v. Langley

• Decision Date: 29 October 1878
• Court: Michigan Supreme Court
• Parties: Edward Campau v. Thomas Langley

39 Mich. 451

Edward Campau v. Thomas Langley

Supreme Court of Michigan

October 29, 1878

Submitted October 11, 1878

Error to Wayne.

Replevin. Plaintiff brings error.

Judgment affirmed with costs.

Henry M. Cheever for plaintiff in error. A statute authorizing private persons to seize animals trespassing on their lands and sell them to satisfy the trespass is unconstitutional Rockwell v. Nearing, 35 N. Y., 308; see also Wynehamer v. People, 13 N. Y., 395.

Griffin & Dickinson for plaintiff in error.

OPINION

Marston J.

Plaintiff replevied certain horses under that part of chapter 214 of the Compiled Laws relating to the replevin of beasts distrained. It appeared that the horses were running at large in the public highway opposite lands owned by Langley, who thereupon took them into his custody and possession under the provisions of section 3 of Act 184 of the Session Laws of 1877, p. 199; that he immediately notified the town clerk and caused a description of them to be entered in his books, and that the provisions of section 4 of Act No. 66, Session Laws of 1875, p. 102, in reference to notifying the commissioner of highways, and giving notice by the latter were complied with. It farther appeared that by resolution of the board of supervisors, the Act of March 27, 1867, Comp. L., ch. 59, became operative in the township of Greenfield, and that there was no public pound in the township. Previous to the time fixed for the sale of the horses the plaintiff demanded possession thereof which was refused, and then brought this action.

Under the charge of the court defendant obtained a verdict and judgment for six dollars.

It is first objected that the court erred in instructing the jury as to the tendency of the evidence, ^[*] citing Perrott v. Shearer, 17 Mich. 48, and Blackwood v. Brown, 32 id. 107. We had occasion in Hayes v. Homer, 36 Mich. 374, to point out the distinction, and within what was there said no error was committed.

The important question presented relates to the constitutionality of the statutes under which the horses were seized. It is insisted that the act provides for divesting the title of the owner of the property without due process of law.

We are of opinion that this statute is not open to the objections urged against it in this case. The primary object which the Legislature had in view was to prevent animals from running at large in the public highways. True, section 3 as amended in 1877 declares it shall be lawful for any person to take into his custody and possession any animal which may be trespassing upon premises owned or occupied by him, but the seizure in this case was not under that provision of the statute. Here the animals were running at large in the highway, and the statute, in authorizing a sale, does not contemplate or provide any compensation to the person seizing the animals, by way of damages for the injury he may have sustained on account of the trespass.

The statute provides that a justice of the peace or a commissioner of highways of the town in which such seizure was made, shall be notified, and that he thereupon shall give public notice that such animals shall be sold at public auction, at some convenient specified place, not less than fifteen nor more than thirty days from the time of the affixing of such notice. At the time fixed the justice or commissioner shall proceed to sell the animals for cash, and out of the proceeds thereof he is to retain certain fixed fees for his...