Herzberg v. County of Plumas

• Decision Date: 03 October 2005
• Docket Number: No. C048130.,C048130.
• Citation: 133 Cal.App.4th 1,34 Cal.Rptr.3d 588
• Court: California Court of Appeals Court of Appeals
• Parties: Jack W. HERZBERG et al., Plaintiffs and Appellants, v. COUNTY OF PLUMAS, Defendant and Respondent.

34 Cal.Rptr.3d 588

133 Cal.App.4th 1

Jack W. HERZBERG et al., Plaintiffs and Appellants, v. COUNTY OF PLUMAS, Defendant and Respondent.

No. C048130.

Court of Appeal, Third District.

October 3, 2005.

Barbara Thompson, County Counsel and Brian L. Morris, Deputy County Counsel for Plaintiffs and Appellants.

The Zumbrun Law Firm, Ronald A. Zumbrun, Mark A. Teh, Matthew W. Kubicek, and Kevin D. Koons, Sacramento, for Defendant and Respondent.

CANTIL-SAKAUYE, J.

Upset because their neighbor's cattle come onto their property, eating the vegetation, defecating, and trampling the ground and sensitive creek beds, plaintiffs sued their neighbors (the Wemples), the County of Plumas, and the Board of Supervisors of the County of Plumas (County) for trespass, nuisance, injunctive relief, taxpayer relief, declaratory relief, inverse condemnation, violation of civil rights and preemption by state law. Only plaintiffs' action against the County is at issue in this appeal. On appeal plaintiffs claim the trial court erred in entering judgment in favor of the County after sustaining the County's demurrer to each of the six causes of action alleged against the County without leave to amend. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On March 2, 1982, the Board of Supervisors of Plumas County adopted Ordinance No. 82-490, amending Title 9 of the Plumas County Municipal Code by adding Chapter 6 regarding open range lands (the ordinance). The ordinance created two areas of open range land, the "Bucks Lake Area Open Range" and the "Last Chance Creek Open Range." (Plumas County Mun.Code, § 9-6.05.)¹ Pursuant to its authority under Food and Agriculture Code section 17124, the County declared such areas of land to be areas devoted chiefly to the grazing of livestock² and within those areas, no owner or rightful possessor of land had the right to take up an estray animal found upon his or her land, unless the land was entirely enclosed with a lawful fence.³ The ordinance also gave the owner or rightful possessor of unfenced land within the designated open range the right to "a reasonable rental fee from any person who pastures livestock thereon." (§ 9-6.04, subd. (a).) The term "`reasonable rental'" was defined "as at least AUM (values used for Williamson Act contracts in the area) or Forest Service lease fees in the allotment area, whichever is higher." (Ibid.)

In 1994, plaintiffs bought a 40-acre parcel of land known as the Cottonwood property located within the Last Chance Creek Open Range designation of the ordinance.⁴ From 1995 to 2000 and again in 2003, the Wemples received Forest Service permits to lease land adjacent to plaintiffs' Cottonwood property and they grazed their cattle, including four bulls, on or near plaintiffs' property. Plaintiffs' property was physically damaged (trampled and defecated upon) as the result of the Wemples's cattle trespassing on their property. The Wemples did not pay plaintiffs for the use of plaintiffs' land and plaintiffs' attempts to contact the Wemples for payment went unanswered.

On April 8, 2004, plaintiffs filed their complaint against the Wemples and the County. Plaintiffs sued the Wemples for trespass and nuisance. Plaintiffs sought injunctive relief against both the Wemples and the County. As to the County only, the plaintiffs alleged five additional causes of action—taxpayer relief, declaratory relief, inverse condemnation, violation of civil rights and preemption by state law.

Plaintiffs generally alleged the ordinance improperly shifted the burden of animal grazing from cattle ranchers to private property owners falling within the open ranges. Specifically, plaintiffs' property had been trampled, defecated upon, and damaged by the freely roaming cattle. The burden of figuring out to whom the cattle belonged, collecting a reasonable rental fee, and erecting a lawful fence if the owner wanted to keep the cattle out, fell on the owner. Plaintiffs also alleged the value of their property was significantly diminished subsequent to the enactment of the ordinance.

As to the County, plaintiffs alleged the ordinance was an unconstitutional taking of their property under the Fifth Amendment to the United States Constitution and section 19 of Article I of the California Constitution, deprived the plaintiffs of the privileges and immunities owed to them under the federal Constitution, deprived plaintiffs of substantive and procedural due process under the Code of Civil Procedure, the state and the federal Constitutions, violated plaintiffs' constitutional rights to equal protection, and was preempted by state law prohibiting the enactment of any measure constituting commercial rent control.

The County demurred to the complaint on the ground that each cause of action failed to state facts sufficient to constitute a cause of action against the County. (Code Civ. Proc., § 430.30.)

The trial court agreed with the County and sustained the County's demurrer to the third through eighth causes of action without leave to amend. A signed written order, constituting a judgment, was subsequently entered and filed dismissing the County from the action. (Code Civ. Proc., § 581d.) Plaintiffs timely appealed.

DISCUSSION

I. General Background to California's "Fencing Out" and "Fencing In" Laws

"At common law, `every unwarrantable entry on another's soil the law entitles a trespass by breaking his close,....' [Citation.] And this was true whether the land was inclosed or uninclosed...." (Blevins v. Mullally (1913) 22 Cal.App. 519, 523, 135 P. 307, original italics.) Under the common law rule, the party was "answerable not only for his own trespass, but that of his cattle." (Ibid.)

This rule of common law requiring owners of cattle to keep them confined to their own close was, however, abrogated in the first session of the California Legislature in 1850 by an enactment (commonly referred to as a "fencing out" statute) limiting the right to take up livestock "estrays"⁵ to plaintiffs who maintain a proper fence around their land. (Stats. 1850, ch. 49, p. 131; Waters v. Moss (1859) 12 Cal. 535, 538; Shively v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1629, fn. 3, 35 Cal.Rptr.2d 238; Williams v. Goodwin (1974) 41 Cal.App.3d 496, 502-503, 116 Cal.Rptr. 200; Davis v. Blasingame (1919) 40 Cal.App. 458, 459, 181 P. 104; Blevins v. Mullally, supra, 22 Cal.App. at p. 524, 135 P. 307;) "Before the discovery of the gold mines [California] was exclusively a grazing country; its only wealth consisting in vast herds of cattle, which were pastured exclusively upon uninclosed lands. This custom continued to prevail after the acquisition of the country by the United States...." (Waters v. Moss, supra, at p. 538.) Traditional open range grazing allowed the moving of cattle to and from summer and winter pasturage. (Ellickson, Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County (1986) 38 Stan.L.Rev. 623, 637-638.) For a time, the "fencing out" rule (the landowner builds a fence to keep the cattle out), and not the common law "fencing in" rule (the cattle owner builds a fence to keep his cattle in), applied to all the land in California. (Davis v. Blasingame, supra, at p. 459, 181 P. 104.)

Starting in 1863, as conditions within the state changed from a pastoral to an agricultural or horticultural use of the land, the common law rule of fencing in cattle began to be restored to particular areas and counties within California. (Williams v. Goodwin, supra, 41 Cal.App.3d at p. 503, 116 Cal.Rptr. 200; Davis v. Blasingame, supra, 40 Cal.App. at p. 459, 181 P. 104.) Eventually the common law rule exceptions became so numerous a comprehensive legislative response was triggered. (Ellickson, Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County, supra, 38 Stan.L.Rev. at pp. 660-661.) The Estray Act of 1915 (Stats.1915, ch. 397, p. 636) repealed all "fencing out" laws and restored the common law requiring "fencing in" for all but the six northernmost counties of Del Norte, Lassen, Modoc, Shasta, Siskiyou, and Trinity. (Montezuma Improv. Co. v. Simmerly (1919) 181 Cal. 722, 726, 189 P. 100.) The County of Del Norte was dropped from the "fencing out" counties in 1931. (Stats.1931, ch. 648, p. 1389.)

The California Legislature continued the existing "estray" provisions when it adopted the Agriculture Code in 1933. (Stats.1933, ch. 25, § 391, p. 124 § 401, pp. 126-127.) However, the Legislature added at the same time a provision allowing voters of a supervisorial district to optionally adopt the "fencing out" laws. (Stats.1933, ch. 25, §§ 411-415, pp. 127-128.) In 1953, the authority to optionally declare an area of land to be "devoted chiefly to grazing" was transferred to the county board of supervisors. (Stats.1953, ch. 939, § 6, p. 2312.) At that time, the county board of supervisors' authority to declare an area to be grazing land became Food and Agriculture Code section 17124. (Stats.1967, ch. 15, p. 241.) The ordinance in this case was adopted by the County's Board of Supervisors in 1982 pursuant to this statutory authority.

The right to recover trespass damages has been consistently linked to the right to seize estrays governed by fencing laws. (Hahn v. Garratt (1886) 69 Cal. 146, 149, 10 P. 329; Williams v. Goodwin, supra, 41 Cal.App.3d at p. 503, 39 Ops.Cal.Atty.Gen. 75 (1962).) Therefore, if "fencing out" laws apply, the person in possession of unfenced land may neither seize estrays nor sue for trespass or injunctive relief. (39 Ops.Cal.Atty.Gen., supra, at p. 75.) An exception may exist, however, if animals are affirmatively herded onto the other person's unfenced property, that is, a person has intentionally driven them to and collected them upon such land. (Logan v. Gedney (1869) 38 Cal. 579, 581; Cramer v. Jenkins (1927) 82 Cal.App. 269, 274-276, 255 P. 877; see Light v. United States (1911) 220 U.S. 523, 537, 31 S.Ct. 485, 488, 55 L.Ed. 570,...