Kelly v. Easton

• Citation: 207 P. 129,35 Idaho 340
• Parties: JOHN A. KELLY, Appellant, v. L. F. EASTON, HORTENSE A. FORD, E. D. FORD and THE RANCH COMPANY, a Corporation, Respondents
• Decision Date: 12 April 1922
• Court: United States State Supreme Court of Idaho

207 P. 129

35 Idaho 340

JOHN A. KELLY, Appellant, v. L. F. EASTON, HORTENSE A. FORD, E. D. FORD and THE RANCH COMPANY, a Corporation, Respondents

Supreme Court of Idaho

April 12, 1922

LANDLORD AND TENANT - TRESPASS OF STOCK - DISTRESS DAMAGE FEASANT-COMMON-LAW RULE-DAMAGES-EXPENSES OF KEEPING STOCK DISTRAINED.

1. The right of distress damage feasant existed under the common law and under the provisions of C. S., sec. 9460, is applicable to this state in so far as it is not repugnant to or inconsistent with our constitution and laws.

2. Where a landlord interrupts the enjoyment by the tenant of the leased premises by permitting his cattle to enter and destroy the tenant's crop, he is liable for all the damages occasioned by such trespass, for which the tenant may distrain the cattle damage feasant or resort to an action at law.

3. A person finding the animals of another trespassing on his grounds damage feasant may; by the rules of the common law distrain them until satisfaction for the damage done shall be made by the owner of the animals.

4. The only damages which the impounder of animals damage feasant is entitled to recover in an action for trespass against their owner are such as were occasioned by the particular trespass which they were committing when they were taken to be impounded.

5. The distrainer of beasts damage feasant was not entitled under the common law to compensation for expenses incurred in connection with their keeping, and such distrained beasts were not subject to sale by the distrainer in order that the proceeds might be applied in satisfaction of the damages sustained or expenses incident to the care and keeping of the beasts while distrained.

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.

Action for trespass to real property. Judgment for plaintiff for damages, but denying him a lien upon animals distrained damage feasant or compensation for their care and keeping while distrained. Affirmed.

Judgment of the trial court affirmed. Costs awarded to respondents.

Lot L Feltham, for Appellant.

Under the facts the appellant was entitled to a common-law lien upon the livestock distrained for the amount of his damages and the care and keeping of such livestock while in his possession, and for the costs of this action. (2 Cyc. 392 398, 399, and notes; Novak v. Shoup, 209 Ill.App. 27; Vanderford v. Wagner, 24 N.M. 467, 174 P. 426.)

"The common law of England, so far as it is not repugnant to, or inconsistent with, the constitution or laws of the United States, in all cases not provided for in these compiled laws, is the rule of decision in all courts of this state." (C. S., sec. 9460.)

"Where there is no obligation to maintain a division fence, the owner of the beasts must take care that they do not trespass on the land of adjoining proprietor. " (2 Waterman on Trespass, sec. 874, 877; Harris v. Gray (Okl.), 165 P. 1148.)

"A person finding the animals of another trespassing on his ground damage feasant may, by the rules of the common law, distrain them until satisfaction for the damage done shall be made by the owner of the animals." (3 Corpus Juris, p. 135, sec. 407, and cases cited; 1 R. C. L. 1140, sec. 81, and cases cited; 2 Cyc. 400.)

The right to impound animals taken damage feasant is merely cumulative of the common-law remedy of distress, and the injured person may elect between the remedies. (3 Corpus Juris, 139, sec. 417, and cases cited; 15 Cyc. 253.)

Harris, Stinson & Harris, for Respondents.

The owner of unfenced or uninclosed land cannot maintain an action for damages against the owner of stock because they happen to feed or graze upon his land. (Strong v. Brown, 26 Idaho 1, Ann. Cas. 1916E, 482, 140 P. 773, 52 L. R. A., N. S., 140.)

Where a common field is established by agreement or common consent, there is no liability if the stock of one range on the land of another in such field. (3 C. J. 130, sec. 400.)

Where the rule of common law requiring the owner of cattle to confine them on his own land does not prevail, one of adjoining owners is not liable to the other for trespass of his cattle on account of not having a division fence. ( Pace v. Potter, 85 Tex. 473, 22 S.W. 300; note, 22 L. R. A. 55.)

The remedy by distress was cumulative and satisfaction obtained in this mode was a bar to an action for damages. ( Rockwell v. Nearing, 35 N.Y. 302; 3 Bl. Com. 6.)

BUDGE, J. McCarthy and Dunn, JJ., concur.

OPINION

BUDGE, J.

This action was brought by appellant for trespass to real property.

From the record it appears that appellant leased from the Ranch Company, in 1916, eighty acres of land, which was a portion of a tract owned by the company. The entire tract was inclosed with a legal fence, but there was no division fence between the premises leased to appellant and the balance of the tract. Appellant continued in the occupancy of the leased premises until the fall of 1919, holding over under his lease. About September 25, 1919, respondents Hortense A. Ford and E. D. Ford, over appellant's protest, turned into the inclosed tract ten horses and eleven head of cattle owned by them and the Ranch Company, subject to a mortgage held by respondent Easton. Respondents permitted this livestock to range over and upon the leased premises, grazing upon, destroying and trampling down grain growing thereon, until seized and impounded by appellant on November 2, 1919, and held by him for 103 days thereafter.

Appellant prayed for judgment against respondents in the sum of $ 600, together with costs and the expense of care and keeping of the livestock while impounded by him, that the stock be sold at public sale and the proceeds contributed towards the payment of the judgment and costs, accrued and accruing, and for a deficiency judgment. The cause was tried to the court and a jury. The jury found for appellant in the sum of $ 370 for his damages, and allowed him 20 cents per day per head for the care and feeding of the stock while in his possession. The court rendered judgment for $ 370 in favor of appellant, but refused to allow him any lien upon the stock or any compensation for the care and keeping thereof while in his custody.

This appeal is from that portion of the judgment refusing to allow appellant any lien upon or compensation for the care and keeping of the stock while impounded. In his assignments of error, appellant attacks the action of the court in denying him a lien upon the distrained stock for his damages, in denying him a lien for the expense of care and keeping said stock, and in refusing to give him judgment for any sum for the care and keeping of the stock while distrained.

The right of distress damage feasant existed under the common law, and is applicable to this state in so far as it is not repugnant to or inconsistent with our constitution and laws. C. S., sec. 9460, provides that: "The common law of England so far as it is not repugnant to or inconsistent with the constitution or laws of the United States, in all cases not provided for in these compiled laws, is the rule of action in all courts of this state."

As was held in Rust v. Low, 6 Mass. 90, at 97: "Every person, then, may distrain cattle doing damage on his close, or maintain trespass against the owner of the cattle, unless the owner can protect himself by the provisions of the statute, or by a written agreement, to which the parties to the suit are parties or privies, or by prescription."

The common-law rule that every man must confine his own cattle to his own land does not obtain in this state (Johnson v. Oregon Short Line Ry. Co., 7 Idaho 355, 63 P. 112, 53 L. R. A. 744), and in Strong v. Brown, 26 Idaho 1, Ann. Cas. 1916E, 482, 140 P. 773, 52 L. R. A., N. S., 140, it is held that under our statute (C. S., c. 82), if a land owner fails to fence out cattle lawfully at large, he may not recover for loss caused by such livestock straying upon his uninclosed land. The statute would seem, however, to have reference to land owners as between themselves and the public, and is not applicable to the relation existing between a landlord and tenant, in the absence of a specific agreement to the contrary.

The correct rule in this regard was, we think, announced in Henly v. Neal, 21 Tenn. 551, that: "When one man rents to another a given portion of a field in one inclosure, . . . . he is prohibited from doing anything, or so using the remainder of the field, as to defeat the very object for which the tenant had rented the land, and, if he put his stock into the inclosure so as to cause injury to the tenant, he is liable to the latter for the damages."

If the landlord interrupt the enjoyment of the leased premises, by permitting his cattle to enter and destroy the tenant's crop, he should be liable for all damages occasioned by such trespass, for which the tenant may distrain the cattle damage feasant or resort to an action at law.

The questions then arise as to what constitutes distress damage feasant, whether the distrainer has or is entitled to an enforceable lien upon the distrained beasts for the damage caused by the trespass and for the expense of their care and keeping, if he is entitled to recover for such expense.

A person finding the animals of another trespassing on his grounds damage feasant may, by the rules of the common law, distrain them until satisfaction for the damage done shall be made by the owner of the animals. (2 Am. & Eng Ency. of Law, 2d ed., p. 358; 1 Cooley on Torts, 3d ed., 77; 3 C. J., Animals, sec. 407, p. 135.) As was said in Bonner v. DeLoach, 78 Ga. 50, 2 S.E. 546: "The provisions of the common law (Broom's Commentaries, 781, 782) regulating this matter, render the...