Sifers v. Johnson

• Decision Date: 21 June 1901
• Citation: Sifers v. Johnson, 7 Idaho 798, 65 P. 709 (Idaho 1901)
• Parties: SIFERS v. JOHNSON
• Court: Idaho Supreme Court

65 P. 709

7 Idaho 798

SIFERS v. JOHNSON

Supreme Court of Idaho

June 21, 1901

POLICE REGULATION-DOMESTIC ANIMALS.-A statute making it unlawful to herd or graze sheep within two miles of an inhabited dwelling, and making the owner of sheep so herded or grazed liable for damages to the injured party, is a valid exercise of the police power of the state, and not unconstitutional.

(Syllabus by the court.)

APPEAL from District Court, Blaine County.

Affirmed, with costs of appeal to the respondent.

Guy C Barnum, for Appellant, cites no authorities upon the point decided by the court.

L. L Sullivan, for Respondent.

The main question in this case is as to whether the provisions of section 1210 of the Revised Statutes, are in conflict with the federal constitution or the laws of Congress. That is the question upon which both parties to this case desire the decision of this court. In the case at bar, a reasonable police regulation has been established for the protection of the rights of the farmer of the state and for the preservation of the peace and good order of society. It is stated by a leading law-writer that about ninety per cent of the legislation of the United States is in regard to police regulations. It is stated in State v. Harrington, 68 Vt. 622, 35 A. 515, 34 L. R. A. 100, that the police power is not limited to the protection of health, morals and education, but comprehends all of those general laws and regulations necessary to secure the peace and good order of the people. In the exercise of its police power, a state may absolutely or unconditionally, restrain any and all livestock from running at large; and this without any reasons or grounds other than that of expediency, as determined by their legislative will. (See Kimmish v. Ball, 129 U.S. 217, 9 S.Ct. 277, 32 L. ed. 695, and authorities cited on page 696; 1 Tiedeman on State and Federal Control of Persons and Property, 1.)

QUARLES, C. J. Sullivan, J., concurs. Stockslager, J., dissents.

OPINION

QUARLES, C. J.

The plaintiff commenced this action in the justice's court of Soldier precinct, in Blaine county, to recover damages from the defendant by reason of trespass committed by sheep belonging to and under the control of the defendant upon the premises, and within two miles of the same. The plaintiff recovered judgment, and the defendant appealed to the district court; and upon a trial in the district court plaintiff recovered a verdict for $ 100 damages, upon which a judgment was entered in favor of the plaintiff and against the defendant for the sum of $ 100 and costs. Defendant then moved for a new trial, which being denied, he appealed from the order denying a new trial and from the judgment.

It appears from the record that the respondent owns the lands upon which he resides and which he farms in fee simple; that he has his said lands inclosed, and, at the date of the trespass complained of, had growing crops thereon, same being inclosed with barbed-wire fences; that the sheep of appellant were herded and grazed immediately around the residence and farm of the respondent, and trespassed within his inclosures; that a few of the sheep died--some within the field of respondent, and some very near to his house--and were permitted by appellant to there remain. The damage done to respondent was estimated at from $ 100 to $ 250 by the witnesses, including that within his inclosure, and that to the pasturage without, but within two miles of his dwelling. The evidence also shows that appellant had five bands of sheep--about two thousand in each band--grazing within two miles of the dwelling of the respondent, and so destroyed the pasturage that cattle and horses could not exist there; that cows will not graze where sheep have been grazed the same season. The respondent expostulated with appellant about the latter grazing his bands of sheep about and around his dwelling; whereupon appellant said to respondent, in substance, that "when he was in the cattle business the sheepmen ran sheep in on his range and destroyed the range, and he had to go out of the cattle business, and now he was in the sheep business, and he didn't know any way for us to do but to take our medicine." It appears that the jury took into consideration both the damages that respondent sustained by reason of the sheep trespassing within his fields and those sustained by him by reason of the sheep being grazed within two miles of his dwelling.

Sections 1210-1212 of the Revised Statutes of Idaho are as follows:

"Sec. 1210. It is not lawful for any person owning or having charge of sheep to herd the same, or permit them to be herded on the land or possessory claims of other persons, or to herd the same or permit them to graze within two miles of the dwelling-house of the owner or owners of such possessory claims.

"Sec. 1211. The owner or the agents of such owner of sheep violating the provisions of the last section, on complaint of the party or parties injured before any justice of the peace for the precinct where either of the interested parties may reside, is liable to the party injured for all damages sustained; and if the trespass be repeated, is liable to the party injured for the second and every subsequent offense in double the amount of damages sustained.

"Sec. 1212. When the owner or the agent of such owner of sheep found trespassing upon the land or possessory claims of another, or within two miles of the dwelling-house of the claimant or occupant of such possessory claim, is unknown to the party injured by such trespass, all sheep so trespassing may be treated as estrays."

It is contended by appellant that these statutes are unconstitutional and void. Appellant also contends that, if these sections are held valid, they do not apply to this case,...