Ely v. Rosholt
| Decision Date | 19 January 1903 |
| Docket Number | 6731 |
| Citation | 93 N.W. 864,11 N.D. 559 |
| Parties | WILLIAM ELY v. JOHN ROSHOLT |
| Court | North Dakota Supreme Court |
Appeal from district court, Traill county; Pollock, J.
Action by William Ely against John Rosholt. Judgment for plaintiff and defendant appeals. Reversed.
This case was tried in justice court, and appealed to the district court of Traill county, and was there submitted upon an agreed statement of facts, from which it appears that the provisions of chapter 42 of the Code of Civil Procedure have never been abolished in Traill county; that plaintiff was in the month of February, 1901, the owner and in possession of a section of land near Mayville, in Traill county, on which was a stack of hay belonging to plaintiff. The farm and hay stack were unfenced. Between February 20 and February 25, 1901 horses belonging to defendant repeatedly entered upon plaintiff's land, and devoured and destroyed $ 20 worth of hay in a stack. The defendant permitted his horses to run at large, but had no actual knowledge that they were destroying plaintiff's hay, and he had no intention of causing such damage. Before suing, plaintiff notified defendant in writing of his damage, and the probable amount thereof. The district court, as a conclusion of law, found "that the plaintiff is entitled to recover of defendant the value of the hay destroyed by defendant's horses, and is entitled to judgment herein for the value thereof, to wit the sum of twenty dollars, and interest thereon since February 25, 1901, together with his costs in district court taxed at fifteen and 65-100 dollars, and costs in this court to be taxed by the clerk." This conclusion of law is challenged by the appeal.
Reversed and remanded, with directions, and judgment entered for appellant, dismissing the action, and for his costs. Appellant recovered costs of this appeal.
F. W. Ames, for appellant.
Asa J. Styles, for respondent.
COCHRANE, J. (after stating the facts).
In this state the rule of the common law is declared by statute: That the owner of stock is liable in damages for trespasses by them (section 6153, Rev. Codes; Bostwick v. Railway Co., 2 N.D. 440, 447, 51 N.W. 781) unless the trespass is committed between the 1st day of November and the 1st day of April (section 1549, Rev. Codes), and excepting in those counties where, by a majority vote of the electors, had pursuant to the provisions of sections 1550-1552, Rev. Codes, the operation of the earlier statute has been annulled. The destruction of respondent's property, complained of in this case, was accomplished in the month of February, when horses were permitted to run at large. The damage was not effected through any wilful act of the appellant. It is clearly the purpose of the law to require the owner or person in charge or possession of horses, mules, cattle, goats, sheep, and like animals, to restrain them from running at large except during the months of winter, between November 1st, and April 1st, when the annual crops have been gathered, and when, under ordinary conditions, as they here exist, emblements and accretions of the soil have been housed, marketed, or stacked within inclosures sufficient to turn stock, and that during these winter months the advantages to the stock owners of being permitted to let their stock run at large overbalance the disadvantages to a minor part of the community in being required to protect haystacks against ranging horses, mules, cattle, and sheep. As to this class of legislation other states have been controlled by the same consideration, viz., the requirements of local conditions. Note to Bulpit v. Matthews (Ill.) 22 L. R. A. 55 (s. c. 34 N.E. 525); Buford v. Houtz, 10 S.Ct. 305, 33 L.Ed. 618; Kerwhaker v. Ry. Co., 3 Ohio St. 172 at 179, 62 Am. Dec. 246; Seeley v. Peters, 5 Gilm. 130 at 142; Morris v. Fraker, 5 Colo. 425; 12 Am. & Eng. Enc. L. 1042, and note. It is equally clear that, if live stock is permitted to run at large during any portion of the year, an action is not maintainable by landowners for injury to their personal property thereon by ranging stock at such times when the ordinary precautions which common prudence would dictate have not been taken to protect such property from destruction. Applying the rule of law to the facts of this case, respondent's negligence in leaving his hay out upon an uninclosed field, and without any stock guard around the stack, during a season of the year when stock was permitted to run at large, was the direct cause of his loss. Jones v. Witherspoon, 78 Am. Dec. 263; Chase v. Chase, 15 Nev. 259.
Counsel for respondent contends that the concluding proviso in section 6153, Rev. Codes, viz., "None of the provisions of this chapter shall be construed as conflicting with the provisions of section 1549 of the Political Code, permitting stock to run at large from the first day of November until the first day of April of each year," was not intended to except from the operation of the statute the five winter months, and render the statute operative but seven months in the year, but that the proviso furnishes a rule of interpretation only; that but for this proviso the later statute would conflict with, and therefore operate as a repeal of, the earlier enactment, permitting stock to run at large during...
To continue reading
Request your trial