State v. Butterfield

• Decision Date: 05 May 1917
• Citation: 30 Idaho 415,165 P. 218
• Parties: STATE, Respondent, v. A. G. BUTTERFIELD, Appellant
• Court: Idaho Supreme Court

165 P. 218

30 Idaho 415

STATE, Respondent, v. A. G. BUTTERFIELD, Appellant

Supreme Court of Idaho

May 5, 1917

PUBLIC RANGE-CATTLE-SHEEP-CUSTOM AND USAGE.

1. Under sec. 6872, Rev. Codes, if the usual and customary use of a range has been for cattle, it is a cattle range.

2. If the usual and customary use of a range has been for both cattle and sheep, it is not a cattle range under said section, but a cattle and sheep range.

3. The exclusive right of cattlemen as against sheepmen to the use of certain range which has first been occupied by the cattlemen may be abandoned by their act in entirely ceasing to use said range, or by permitting the customary use of it for sheep in common with cattle, without protest, or asserting an exclusive right.

4. If cattlemen and sheepmen jointly use the range in the usual and customary manner of using it for a period of time long enough to create a custom, if the cattlemen know of such joint use and do not protest against it nor claim a prior and exclusive right to the same, then the herding or grazing of sheep upon such range is not unlawful, even though it be a fact that before such customary joint use for both sheep and cattle the land was used exclusively for cattle.

5. The evidence in this case held insufficient to justify a verdict of guilty of grazing sheep upon a cattle range.

6. Proof of customary use of a range for both cattle and sheep in common is proper evidence to consider in determining whether such range has been abandoned as a cattle range, and an instruction to this effect, requested by defendant, should have been given by the trial court.

7. Held, that said sec. 6872, Rev. Codes, is not unconstitutional and void. State v. Horn, 27 Idaho 782, 152 P. 275, and State v. Omaechevviaria, 27 Idaho 797, 152 P 280, approved and upheld.

[As to implied contract to pay rent for use of another's land for grazing cattle, see note in Ann.Cas. 1912C, 1147]

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

Defendant was convicted of having violated sec. 6872, Rev. Codes, by herding, grazing and pasturing sheep upon a cattle range. Reversed.

Reversed and remanded, with direction.

Alfred A. Fraser and E. R. Coulter, for Appellant.

The statute is so ambiguous and uncertain as to render it void. ( Louisville & N. R. Co. v. Railroad Commission, 19 F 679; Jannin v. State, 42 Tex. Cr. 631, 96 Am. St. 821, 51 S.W. 1126, 62 S.W. 419, 53 L. R. A. 349; Louisville & Nashville R. R. Co. v. Commonwealth, 99 Ky. 132, 59 Am. St. 457, 35 S.W. 129, 33 L. R. A. 209; Chicago & N.W. Ry. v. Dey, 35 F. 866, 1 L. R. A. 744; Ex parte Jackson, 45 Ark. 158.)

The police power of the state has its limitations, and in order to be valid, the law must be founded upon some reason recognized as coming within the police power. (Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385.)

Again, this statute is void for uncertainty, in that it fails to define a cattle range or fix the boundaries thereof. ( Holcomb v. Keliher, 5 S.D. 438, 59 N.W. 227.)

If the court should attempt to give a definition upon this question, and therefore aid out this indefinite statute, it would be judicial legislation, and the crime would then be defined by the court and not by the statute. (Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.)

Sec. 6872, Rev. Codes of Idaho, is in direct conflict with the act of Congress of Feb. 25, 1885, and therefore null and void. ( McGinnis v. Friedman, 2 Idaho 393, 17 P. 635; United States v. Douglas-Willan Sartoris Co., 3 Wyo. 287, 22 P. 92.)

T. A. Walters, Atty. Gen., and Lot L. Feltham, for Respondent.

The statute has been held constitutional, and has been enforced. (State v. Horn, 27 Idaho 782, 152 P. 275; State v. Omaechevviaria, 27 Idaho 797, 152 P. 280.)

MCCARTHY, District Judge. Morgan and Rice, JJ., concur.

OPINION

MCCARTHY, District Judge.

This case was commenced in the probate court of Washington county, upon a complaint charging the defendant with a violation of the provisions of sec. 6872, Rev. Codes. Upon the trial in said court the defendant was found guilty as charged in the complaint and an appeal was taken from the judgment to the district court for Washington county. Upon the trial in the district court the defendant was again found guilty and the court sentenced him to pay a fine of $ 25 and the costs of the action. The appeal herein is from said judgment of the district court.

The principal assignments of error relied upon by appellant, are:

First, that the court erred in refusing to give certain instructions which were requested by him;

Second, that the evidence is insufficient to justify the verdict; and,

Third, that the statute upon which the prosecution is based is unconstitutional and void.

The complaint alleges that the defendant herded, grazed and pastured, and permitted and suffered a band of sheep to be herded, grazed and pastured on the range in question, said range being then and there cattle range previously occupied by cattle, and range then and there usually occupied by cattle-growers, the said defendant having full knowledge of the character of said range.

It is stipulated by and between the parties that the tract of land or range mentioned in the complaint has ever since the year 1885 been used both as a cattle and sheep range in the usual and customary use of such range as a cattle or sheep range. The defendant was convicted of permitting and suffering sheep to be herded, grazed and pastured upon said range. The case was prosecuted under the provisions of sec. 6872, Rev. Codes, which reads as follows:

"Any person owning or having charge of sheep, who herds, grazes, or pastures the same, or permits or suffers the same to be herded, grazed or pastured on any cattle range previously occupied by cattle, or upon any range usually occupied by any cattle grower, either as a spring, summer or winter range for his cattle, is guilty of a misdemeanor; but the priority of possessory right between cattle and sheep owners to any range, is determined by the priority in the usual and customary use of such range, either as a cattle or sheep range."

There is evidence in the record to the effect that the range was first used for horses and cattle in 1874, and has been used continuously for horses and cattle ever since. The evidence shows that sheep came upon the range about 1885. There is evidence that since 1890 the defendant himself has ranged sheep upon the range in question. The stipulation is to the effect that ever since 1885 sheep have ranged upon it in the usual and customary use of it as a sheep range. No protest on the part of the cattlemen and no claim of exclusive right on their part is shown in the evidence up to within a few days prior to the commencement of this action.

The defendant requested several instructions on the question of abandonment, among others the following:

"The jury are instructed that if you find from the evidence that continuously since the year 1885 the range or tract of land mentioned in the complaint has been jointly used both as a cattle and sheep range in the usual and customary use of such range, then you should take this fact into consideration upon the question as to whether or not such range had been...