Pacific Live Stock Co. v. Murray

• Citation: 45 Or. 103,76 P. 1079
• Parties: PACIFIC LIVE STOCK CO. v. MURRAY.
• Decision Date: 13 June 1904
• Court: Supreme Court of Oregon

76 P. 1079

45 Or. 103

PACIFIC LIVE STOCK CO. v. MURRAY.

Supreme Court of Oregon

June 13, 1904

Appeal from Circuit Court, Grant County; Morton D. Clifford, Judge.

Action by the Pacific Live Stock Company against Kenneth Murray. From a judgment for plaintiff, defendant appeals. Reversed.

Hicks & Davis, for appellant.

John L. Rand, for respondent.

BEAN, J.

This is an action to recover damages for the trespass of defendant's sheep upon plaintiff's uninclosed grazing lands in Grant county in the year 1902. Plaintiff had judgment for $525, and defendant appeals.

It is unnecessary to set out the pleadings or the facts in detail. Two questions are presented for decision: (1) Whether an action can be maintained for the depasturing of uninclosed lands in Grant county by sheep under the charge of a herder without alleging and proving either that the premises were inclosed by lawful fences, or that the sheep were knowingly and willfully driven and confined upon the land; and (2) error in the admission and rejection of testimony.

At common law, an owner of domestic animals was required to confine them on his own land, and was liable for any injury done by them to the uninclosed land of another. 2 Waterman Trespass, § 858; 2 Am. & Eng.Enc.Law (2d Ed.) 351. This rule has in part been abrogated in this state by the several fence laws. In 1870 the Legislature passed an act requiring all fields or inclosures to be inclosed by a certain character of fence, and providing that, if any stock broke into such inclosure, the owner should be liable in damages therefor but excluding the counties of Umatilla, Baker, and Union from its operation. Laws Or. 1870, p. 20. In Campbell v Bridwell, 5 Or. 311, it was held that in the portion of the state where this law applied an action could not be maintained for the trespass of domestic animals without showing an inclosure built in substantial conformity to the statute, and this rule was reaffirmed in Walker v Bloomingcamp, 34 Or. 391, 43 P. 175, 56 P. 809, and Fry v. Hubner, 35 Or. 184, 57 P. 420. In 1872 the Legislature so amended the act of 1870 as to include Umatilla county only (Laws Or. 1872, p. 15), and at the same session enacted a law "in relation to trespass by cattle, and regulating fences in the counties of Umatilla and Wasco" ( Id. p. 123). By section 1 of this latter act it is provided that no action shall be maintained for damages done by certain enumerated animals, not including sheep, unless the person seeking such damages shall allege and prove upon the trial that the premises at the time of the commission of the injury were inclosed with a lawful fence. Section 2 defines what shall constitute a lawful fence within the meaning of the law. Section 3 provides for the seizure of the trespassing stock as security for the payment of the damages done by them, and section 4 that the act shall apply only to the counties of Umatilla and Wasco. Section 2 was amended in 1874 (Laws Or. 1874, p. 65), and, as so amended, published in Hill's Compilation of the Laws of Oregon as sections 3452-3455. In French v. Cresswell, 13 Or. 418, 11 P. 62, Bileu v. Paisley, 18 Or. 47, 21 P. 934, 4 L.R.A. 840, and Strickland v. Geide, 31 Or. 373, 49 P. 982, it was decided that in counties to which the act of 1872 applied it is not necessary to fence against sheep, because they were not named in the act; that as to them the common-law rule prevails, and an action can be maintained for trespass on uninclosed lands. This has been the law ever since French v. Cresswell was decided, and has been the basis for subsequent legislation. We therefore do not feel like disturbing it, whatever views we might entertain if the question were one of first impression. In 1901 the Legislature extended, or endeavored to extend, the act of 1872 so as to include the counties east of the Cascade Mountains, naming them, by amending section 3455 of Hill's Ann.Laws 1892, being section 4 of the law of 1872. Laws Or. 1901, p. 128. If the latter act is valid, the doctrine of French v. Cresswell and the subsequent cases based thereon is applicable to an action for the trespass of sheep in Grant county, and there was no error in the ruling of the court upon that point.

Whether the subject-matter of the amendatory act of 1901 is so far germane to that of the one sought to be amended that it could have been included in the original without violating the provisions of the Constitution requiring the subject of an act to be expressed in the title is a question we do not decide, but it is worthy of consideration. See Ex parte Howe, 26 Or. 181, 37 P. 536.

One Deardorf was called as a witness for the plaintiff, and testified that he was acquainted with the premises upon which the trespass is alleged to have been committed, and with the character of the grasses growing thereon. There...