Spencer v. Morgan

• Citation: 10 Idaho 542,79 P. 459
• Parties: SPENCER v. MORGAN
• Decision Date: 20 January 1905
• Court: United States State Supreme Court of Idaho

79 P. 459

10 Idaho 542

SPENCER v. MORGAN

Supreme Court of Idaho

January 20, 1905

CONSTITUTIONAL LAW-TWO-MILE LIMIT LAW-HERDING AND GRAZING SHEEP-DAMAGES-ELEMENT OF-CONFLICT IN EVIDENCE.

1. The construction placed on sections 1210 and 1211, Revised Statutes, in the cases of Sifers v. Johnson, 7 Idaho 798, 97 Am.St.Rep. 271, 65 P. 709, 54 L.R.A. 795, and Sweet v Ballentine, 8 Idaho 431, 69 P. 995, holding the provisions of said sections constitutional is the settled law of this state.

2. The keeping of livestock is under the police regulation of the state, and such police regulation extends over the public lands of the United States within the state.

3. Under the provisions of section 1320, Revised Statutes, the land owner is not required to fence against sheep or swine.

4. Where there is a substantial conflict in the evidence the verdict and judgment will not be reversed.

APPEAL from the District Court of Owyhee County. Honorable George H Stewart, Judge.

Action to recover damages for the herding and grazing of sheep under the provisions of sections 1210 and 1211, Revised Statutes. Judgment for plaintiff. Affirmed.

Judgment affirmed with costs in favor of the respondent.

J. F Nugent and S. H. Hays, for Appellant.

There is an implied license given by the United States to all owners of stock to graze them upon the public lands. (Buford v. Houtz, 133 U.S. 320, 10 S.Ct. 305, 33 L.Ed. 618.) In this case it appears that the dwelling-house was out of the sight of the herder, who was not nearer to it than a mile and a tenth; that he did not know he was within the limit and would have stayed out had he known where the limit was. He had received orders from the owner to move to another locality and was actually moving when notified that he was within the limit. It is still the duty of the farmer to fence against sheep. (Rev. Stats., sec. 1320; Knight v. Abert, 6 Pa. 472, 47 Am. Dec. 478.) It was the duty of the plaintiff to make reasonable efforts to prevent the damages suffered, and there can be no recovery of such damages as might have been so prevented. (8 Am. & Eng. Ency. of Law, 2d ed., 605, 690.) The line of plaintiff's two-mile limit could have been indicated at an expense of about $ 10. It was the duty of the plaintiff to make a reasonable expenditure to avoid damage. (8 Am. & Eng. Ency. of Law, 2d ed., 606.)

E. Nugent and Perky & Blaine, for Respondent.

The provisions of our law questioned by this appeal have been sustained by repeated decisions of this court as a proper exercise of the police power. It would be difficult to find a question in all the litigation of this court more definitely settled in our jurisprudence. In the distribution of the governmental powers under the federal constitution, the bulk of the police power remains with the states. The framers of the constitution of the United States proceeded upon the principle that the restrictive control and care of social and economic interests should be left with the member states except where diversity of regulation would be an impediment to national development. (Freund on Police Powers, sec. 64.) The common-law rule that a man must confine his domestic animals to his own inclosure has never obtained in this state. (Johnson v. Oregon Short Line R. Co., 7 Idaho 355, 63 P. 112, 53 L. R. A. 744, decided December 5, 1900.) The law under consideration excluding sheep from a portion of the range and to that extent modifying the doctrine of Johnson v. Oregon Short Line R. Co., supra, was upheld by this court June 21, 1901. (Sifers v. Johnson, 7 Idaho 798, 97 Am. St. Rep. 271, 65 P. 709, 54 L. R. A. 785, the doctrine of which decision has been upheld by repeated decisions since.) As generally sustaining the right of the legislature to modify or abrogate the common-law rule, and that range rights are a proper subject of state legislation, see 2 Cyclopedia, 393-396. Statutes regulating range rights and fence laws may discriminate against sheep. (French v. Cresswell, 13 Or. 418, 11 P. 62.) The common law can be re-enacted as to a particular kind of stock. (Wells v. Beal, 9 Kan. 597.) This court has held that a violation of section 1210, Revised Statutes, is a nuisance, and that the liability for damages is in the nature of a penalty. The court has further expressly held that the settler has an ownership, in common with others, in the grass within "the two-mile limit," and that such ownership is exclusive as against the owners and herders of sheep. (Sweet v. Ballentyne, 8 Idaho 431, 69 P. 995.)

SULLIVAN J. AILSHIE, J., Concurring. STOCKSLAGER, C. J., Dissenting.

OPINION

SULLIVAN, J.

This action was brought by the respondent as plaintiff in the probate court of Owyhee county, on December 8, 1902. From a judgment in favor of the plaintiff in that court an appeal was taken to the district court. On a trial in that court verdict and judgment were rendered and entered in favor of the plaintiff, and a motion for a new trial was overruled. The suit was brought to recover damages alleged to have been sustained by reason of the appellants herding and grazing their sheep within two miles of the residence of the plaintiff, and was brought under the provisions of the law commonly known as the "two-mile limit law," as embodied in sections 1210 and 1211 of the Revised Statutes. On the verdict of a jury judgment was rendered in favor of the respondent for $ 299 and costs of suit. The appeal is from the judgment and order denying a new trial. It is conceded that the land upon which appellants grazed and herded their sheep is unoccupied and unappropriated public land of the United States.

It is first contended that said law is unconstitutional, for the reason that it is in violation of the fourteenth amendment to the constitution of the United States, in that it denies to appellants the equal protection of the law and deprives them of their property without due process of law; that there is an implied license given by the United States to all owners of stock to graze them upon the public lands.

The constitutionality of the provisions of said sections 1210 and 1211 has been passed upon by this court in Sifers v Johnson, 7 Idaho 798, 97 Am. St. Rep. 271, 65 P. 709, 54 L. R. A. 785, Sweet v. Ballentine, 8 Idaho 431, 69 P. 995, Phipps v. Grover, 9 Idaho 415, 75 P. 64, and Walling v. Bown, 9 Idaho 184, 76 P. 318. In those cases it was held that the provisions of said sections were within the reasonable police powers of the state and not repugnant to the provisions of the fourteenth amendment of the federal constitution or to any of the provisions of the constitution of this state. In support of that contention appellants cite Buford v. Houtz, 133 U.S. 320, 10 S.Ct. 305, 33 L.Ed. 618, which it is claimed holds that the implied license given by the United States to all classes of stock to graze upon the public lands is a property right which the state cannot take away, and that such license has been extended to stock of every description, and that the state cannot confine it to a particular class or within special limits. That case was from the then territory of Utah, and decided under the laws of that territory, now state. It is there held that the rule of the common law, to wit, that the owner of domestic animals was liable for trespass of such animals upon the uninclosed land of his neighbor has never prevailed in that state. By the statute law of that territory, domestic animals, when not dangerous, were permitted to run at large without responsibility for their getting upon such lands, and the decision of Buford v. Houtz was rendered with that statute in view. In this state the running of hogs at large is prohibited and the herding and grazing of sheep is prohibited within two miles of an inhabited dwelling. The decision in the case of Buford v. Houtz, supra, is commented upon and quoted at considerable length in Northern P. Ry. Co. v. Cunningham, 89 F. 594. The court there said: "The case of Buford v. Houtz, 133 U.S. 320-332, 10 S.Ct. 305, 33 L.Ed. 618, upon which the defendant relies, would be conclusive in his favor upon this hearing, if the local law upon which that decision rests prevailed in this state. In the opinion by Mr. Justice Miller, the supreme court is careful to make it clear that in Utah, where the case arose, the rule of the common law, that the owner of domestic animals should be liable for their trespassing upon unenclosed land of his neighbor, does not prevail, but, on the contrary, his right to permit them, when not dangerous, to run at large, without responsibility for their getting upon such land of his neighbor is a part of the statute law." It was not intended by the decision in Buford v. Houtz, or of any other decision of the...