Newsom v. Earnheart

• Decision Date: 28 February 1882
• Citation: 86 N.C. 391
• Court: North Carolina Supreme Court
• Parties: A. H. NEWSOM and wife v. STEPHEN A. EARNHEART.

86 N.C. 391

A. H. NEWSOM and wife

v.STEPHEN A. EARNHEART.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION tried at Fall Term, 1881, of ROWAN Superior Court, before Eure, J.

Verdict and judgment for defendant, appeal by plaintiffs.

Messrs. McCorkle & Kluttz, for plaintiffs .

Mr. John S. Henderson, for defendant .

SMITH, C. J.

The defendant took into his possession and impounded a cow, belonging to the feme plaintiff and found running at large on his unenclosed land within the limits of the territory hereinafter defined, for the recovery of possession whereof and damages for detaining, the present action is prosecuted. The defendant justifies the taking by virtue of certain acts of the general assembly, to the provisions of which, so far as they bear upon the matters in dispute and tend to elucidate and explain them, it becomes necessary to advert.

In 1879 an act was passed rendering it unlawful for any live stock to run at large within the limits of Rowan, and certain other counties specified by name, upon condition that the qualified voters in them respectively shall adopt the provisions of the act.

A like provision, and upon the same condition of the approval by a majority of the qualified voters therein, is made for a district in Rowan county of definite and described boundaries.

Section 3 suspends the operation of the law until a good and lawful fence has been erected within the boundaries of any county or territory proposed to be enclosed, with gates at all the public roads that enter therein.

Section 7 makes the wilful permitting by the owner of his live stock to run at large in such territory a misdemeanor, and section 8 contains these words: “It shall be lawful for any person to take up any live stock running at large within any township or district, wherein this act shall be in force, and impound the same,” with a right to retain the trespassing animal until certain specified charges and damages caused by it have been paid. Acts 1879, ch. 135.

At the next session was passed another act, declared in its title to be “for the protection of crops in Rowan county,” and which in section 1 assures to every land owner “the entire and exclusive use of his own soil,” and makes an entry thereon without leave, unlawful; and in section 2 forbids the owner of stock to permit it to enter upon the land of another except with his consent.

Section 3 repeals section 40 of chapter 34, and section 1 of chapter 48 of the Revised Code; section 43 of chapter 32 and section 1 of chapter 48 of Battle's Revisal; and section 3 of chapter 135 of the acts of 1879.

Section 5 confines the enactment to the county of Rowan, postpones its operation until September 1st, 1880, and until the county shall have constructed a fence along the boundary line between it and the county of Stanly. Acts 1880, ch. 24.

In the ensuing year the act of 1879 was amended and its provisions extended to four other named counties, and an additional section inserted after section 20, as follows:

“That upon the written application of one-fifth of the qualified voters of any district or territory in Lincoln, Catawba, Alexander, Burke, Guilford, Randolph, Rowan or Gaston counties, whether the boundaries of said district follow township lines or not, made to the county commissioners at any time, and setting forth well defined boundaries of said district, it shall be the duty of said commissioners to submit the question of said “Stock Law” or “No stock law” to the qualified voters of said district.” Acts 1881, ch. 94. Again a few days later and at the same session was passed another statute “for the better protection of portions of Rowan county where the stock law now prevails.” It adopts sections one, two and three, and repeals sections four and five of the act of 1880, and re-enacts sections eight, nine, ten, eleven, twelve, thirteen and fourteen of the original act of 1879.

Pursuant to the requirements of section two of the first act of 1881, the prescribed number of qualified voters within the district, whose boundaries are set out in their written application to the county commissioners to cause to be submitted to said voters the question whether the stock law should be put in force in those territorial limits, procured an order for an election in which the popular will would be expressed in response to the proposition. An election was accordingly held after a new preparatory registration of the electors, and the necessary number of affirmative votes having been reported, the commissioners declared the result, and published notice that the law had gone into effect in the district.

The court submitted four issues to the jury, and they find that the feme plaintiff is the owner of the cow; that the defendant took her into his possession; that the plaintiff had not sustained damage from the defendant's act; and that the cow had been released from the defendant's custody by the plaintiff, A. H. Newsom, with the assent of his wife.

Judgment...