Keith v. Tilford

• Decision Date: 05 January 1882
• Citation: 11 N.W. 315,12 Neb. 271
• Parties: MORRELL C. KEITH AND GUY C. BARTON, PLAINTIFFS IN ERROR, v. JOHN TILFORD, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

11 N.W. 315

12 Neb. 271

MORRELL C. KEITH AND GUY C. BARTON, PLAINTIFFS IN ERROR, v. JOHN TILFORD, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 5, 1882

ERROR to the district court for Lincoln county, to which the cause had been brought on appeal from the county court. The action was brought by Tilford for damage done to his crops by cattle of Keith and Barton. On trial in district court, before GASLIN, J., and a jury, he obtained a verdict and judgment for $ 100 and costs, to reverse which Keith and Barton came here upon a petition in error.

AFFIRMED.

Hinman & Neville, for plaintiffs in error, cited Hurford v Omaha, 4 Neb. 350. Dudley v. Mayhew, 3 N.Y. 9 Cole v. Muscatine, 14 Iowa 296. Johnston v Louisville, 11 Bush., 527. State, ex rel., v. Marlow, 15 Ohio St. 134. Delaney v. Errickson, 10 Neb. 499. Hardmann v. Bowen, 39 N.Y. 199. Carragus v. The Board of Commissioners, 39 Ind. 66.

John De Lany, for defendant in error, cited 3 Blackstone, 211. Gen. Stat., Chap. X.

OPINION

COBB, J.

There is a very important question raised by the record in this case, which has not heretofore been passed upon by this court. The plaintiffs in error contend that by virtue of the act of March 8, 1871, entitled "An act for a general herd law, and to protect cultivated lands from trespass by stock, " the remedy given in said act, by distress, impounding, notice, arbitration, etc., is made the exclusive remedy in cases of trespass by live stock on cultivated lands. [Comp. Stat., Chap. 2, Art. III.]

There can be no doubt of the correctness of the proposition, to which plaintiffs in error cite numerous authorities, that "Where a statute confers a right and prescribes adequate means of protecting it, the proprietor of the right is confined to the statutory remedy." But the right of every man to the uninterrupted enjoyment of the produce of his cultivated fields must, even in Nebraska, have dated further back than April 1, 1871. While it must be admitted, that some of the language used by way of argument and illustration in the opinion of this court in the case of Delaney v. Errickson, 10 Neb. 492, 6 N.W. 600, seems to imply that prior to the passage of the act, known as the general herd law, there was no law in this state for the protection of even cultivated lands against trespass by live stock, yet, it cannot be claimed that the opinion, taken as a whole, need lead one to such a conclusion. Such certainly neither was nor is the view of the court on that point.

Growing or standing cultivated crops have always, for most purposes, been deemed personal property, not so with growing wild grass and other natural products of the soil; and while technically the form of the action for injury to growing crops recognizes the breaking and entering of the close as of the essence of the injury, yet its object is compensation for the loss of the produce of labor, personal property, and there is little or no essential difference between it and the action of trespass for the taking and carrying away of personal goods. The right to bring an action for an injury to, or the taking and carrying away of any species of chattels, including crops of grain, no doubt was suspended to the first settlers of Nebraska, until civil courts were organized therein for the protection of the rights of person and property, but it is difficult to conceive of a system of civil jurisprudence even of the crudest character which affords no protection to the cultivator of the soil in the enjoyment of his labor.

We are of opinion therefore, that the first section of the act of March 8, 1871, conferred no right to the people of this state, which they did not possess before its enactment.

The second clause of the second section did confer a new right in giving to the owners of cultivated lands, "a lien upon such trespassing animals," but the language of this section is such as to leave it an open question whether such lien cannot be enforced by means other than the impounding etc., provided for in the succeeding sections of the act. But we do not doubt that where it is not sought to rely upon or enforce a lien, the owner of the trespassing stock may...