Delaney v. Errickson
| Decision Date | 28 September 1880 |
| Citation | 6 N.W. 600,10 Neb. 492 |
| Parties | JOHN DELANEY, PLAINTIFF IN ERROR, v. CHARLES ERRICKSON, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Dodge county. The action there was brought by Errickson, who claimed damages for trespass on a quarter section of land of which he was the lessee, and on which he alleges Delaney grazed his cattle and sheep for two or three months during the summer of 1879. Errickson's title to the land was put in issue by the answer, and there was a further defense by Delaney "that the said land is and always has been, uncultivated, uninclosed, wild prairie land, and is, and ever since the first settlement in Dodge county has been, common grazing land for the cattle and sheep of the inhabitants; and from the earliest settlement in Dodge county it has been the common custom of the inhabitants of said county and of the defendant to graze their cattle and sheep upon said land, and by the customs and laws of this state the said land is common and free grazing land to all inhabitants; and that the defendant is, and for ten years last past has been, a resident of said county, living on his own land, adjoining to that said land, and engaged in the business of agriculture and stock growing and breeding." Errickson had judgment before POST, J., and Delaney came here upon a petition in error.
REVERSED AND REMANDED.
E. F Gray and W. H. Munger, for plaintiff in error, cited Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. 172. The C. H. & D. R. R. Co. v. Waterson & Kirk, 4 id., 424. C. C. & C. R. R. Co. v. Elliott, 4 id., 474. Seely v. Peters, 5 Gil. (Ill.), 130. Wagner v Bissell, 3 Iowa 396. Walers v. Moss, 12 Cal. 535. Sherman & Redfield on Neg. Sec., 316 and 319.
G. L. Loomis and N. H. Bell, for defendant in error, cited Powers v. Kindt, 13 Kan. 74. Hefley v. Baker, 19 id., 1. Powers v. Clarkson, 17 id., 218. Larkin v. Taylor, 5 id., 446.
It cannot be denied that at common law every one was obliged at his peril to keep his domestic animals off of the lands of another, and it made no difference whether such lands were inclosed or uninclosed, cultivated or uncultivated.
The first legislature convened in the territory of Nebraska passed an act which (in substance) now constitutes chapter ten of the general laws, and is in the following words: "So much of the common law of England as is applicable and not inconsistent with the constitution of the United States, with the organic law of this territory, or with any law passed or to be passed by the legislature of this territory, be and the same is adopted and declared to be law within said territory."
It will be necessary then to examine, first, whether that provision of the common law of England, above referred to, is applicable to the people of Nebraska in their condition at the time of the passage of said act and down to the present time; and, secondly, whether such provision and principle of the common law are consistent with the several acts of the legislature of the state and late territory bearing upon the question involved in this inquiry.
For a number of years following the establishing of the territorial government, the settlements were almost exclusively confined to the near vicinity of the Missouri river and the small streams emptying into it, where timber for fencing was comparatively plentiful, sufficiently so to enable the settlers to fence such land as they desired to cultivate, and by so doing they were enabled to allow their numerous herds of cattle the free range of the almost boundless prairie at their doors. But soon the lands were commenced to be surveyed and brought into market, and, as the homestead law was not yet enacted, nor the wise policy of reserving the public lands for the use of actual settlers yet adopted, a large number of tracts of land soon became the private property of individuals, many of whom had never been, nor ever expected to be, inhabitants of the territory. Such purchasers of land took an absolute allodial estate in them. Nevertheless they took such estate subject to any and all the conditions which nature, the policy of the government, the undeveloped state of the country, and the state of society had thrown around it. Among these was the fact that it was the settled policy of the general government, which owned the surrounding lands, to throw them open to free and unrestricted pasturage. This was to the early settler and emigrant a valuable privilege, but one which they could not enjoy if each owner of stock was compelled to stand watch over his cattle to keep them off of each tract of land which, by reason of entry at the distant land office, should become the private property of individuals. The cattle could not be taught to regard the mounds of the government surveyors, nor that invisible line which, according to Blackstone, the common law of England draws around the possessions of every landholder.
But as emigration continued and population increased, the settlements extended out upon the open prairies where timber for fencing was not to be had, and we then having no railroad communication with the pineries or the Mississippi river, had each settler been obliged to provide a fenced pasture for his stock to keep them off of the lands of others, the settlement of the territory would have been impracticable. But it being equally impossible to procure fencing to enclose the cultivated fields, there arose a necessity for a law to compel the owners of stock to employ herders for its control, to keep it off of the growing crops. The proposition to enact such a law was regarded with disfavor by the inhabitants of the timbered portion of the state, and for a time strenuously opposed. Hence the peculiar character of the earlier herd laws, and even now five of the northern counties are specifically exempted from its provisions, and a method is prescribed by which any county may at any time take itself out of such operation by a majority vote of the inhabitants. But during the entire history of the territory, as well as that of the state, down to a recent period, it had never been even suggested that neat cattle were, by virtue of any law or custom, required to be either fenced or herded off of wild, uncultivated lands. But the universal understanding, belief, and usage of the people has been to the contrary.
It is claimed, and possibly with justice, that the time has now arrived, when, by reason of the great increase in the density of the population of the state, and the enhanced value of grazing land, the owners of such lands should be protected in its exclusive enjoyment, the same as land sown to crops. If the time has arrived for such change, the legislature and not the courts is the place where it should be inaugurated.
It therefore appears to me that the common law of England, in the respect under consideration, was not "applicable" to our state and condition at the time of the framing of our laws and institutions, even if it can be said to be so now.
Upon examining the several acts passed by the legislature--state as well as territorial--and applying the provisions of the English common law above referred to to them, it will be found to be utterly inconsistent with both their letter and spirit. The first legislature of the territory...
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