State v. Hamilton, A-12310

• Decision Date: 29 May 1956
• Docket Number: No. A-12310,A-12310
• Citation: 298 P.2d 1073
• Parties: The STATE of Oklahoma, Plaintiff in Error, v. Georgie G. HAMILTON, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1073

298 P.2d 1073

The STATE of Oklahoma, Plaintiff in Error, v. Georgie G. HAMILTON, Defendant in Error.

No. A-12310.

Criminal Court of Appeals of Oklahoma.

May 29, 1956.

Rehearing Denied July 18, 1956.

Syllabus by the Court.

1. No specific detailed provision of law for the creation of a grazing district as provided for in 69 O.S.A.1951 § 281 is set out in the statutory provisions. There is nothing in the statute requiring that as a prerequisite to the forming of a grazing district or fencing district, such has to first be designated by the board of county commissioners of the particular county, or by any other officials thereof.

2. Prior to the amendment in 1927 (S.L.1927, Chap. 54, p. 75) Oklhoma had a statute addressed principally to the fencing of rough lands and limited to establishing of restricted forms of grazing districts and providing for the closing of section lenes traversing the same, under certain conditions. S.L.1913, Chap. 61, p. 98.

3. After the 1927 amendment, the Act, S.L.1913, Chap. 61, p. 98 (69 O.S.A.1951 §§ 281-284) was materially enlarged as pertains to grazing, and included in grazing districts lands of more than one owner or lessee, with consequent modification or enlargement, as the case might be, of terms used in the statute prior to amendment.

4. The phrase used in the 1913 Act, 'In districts composed of two or more sections of land', in view of the 1927 amendment providing that one's grazing district might enclose the lands of another, but leaving the description of the minimum area necessary to constitute a grazing district unchanged, and by reason of the fact that the lands of another could not be enclosed and leave the owner or lessee of lands composing the district, in the minimum amount of two square sections of land, Held, to enlarge the meaning of the term. Held, further, the phrase 'two or more sections of land' are words of description of the area of the district, and not words of limitation governing the shape of the district.

5. While in the statutory provisions, 69 O.S.A.1951 §§ 281, 282, 283, the words 'owner, occupant or lessee', appear in the singular, the general rule is that words importing the singular number may be extended or applied to several persons or things unless such construction would be repugnant to the context of the statute, or inconsistent with the mainfest intention of the legislature. Held, that the words 'owner, occupant or lessee' as used in 69 O.S.A. §§ 281, 282, and 283, though in the singular, include the plural.

6. In view of the fact that ownership of land and leasing of land may be by one or more persons and that the use might be by tenancy in common, joint tenancy, community, etc., the use of a grazing district by the owners or lessees of tracts therein, by fencing off specific portions within the district, is not repugnant to the intent of the statute. 69 O.S.A.1951 § 281.

7. It is not unlawful for the owner, owners, lessee or lessees of grazing lands, within the terms and conditions of 69 O.S.A.1951 § 281, to fence such grazing lands with a fence intersecting public roads by erecting and maintaining a gate as provided in said statute.

8. The fact that the interested owners of a grazing district fence off a mail route and eliminate gates does not destroy the tract as a grazing district.

9. The fact that in keeping with customary ranch practice, the owners of grazing district cross-fence the lands and do not use the entirety on a communal basis and that all portions of the grazing district are contiguous only by reason of the joining of the fences of the owners of the district, is not repugnant to the provisions of 69 O.S.A.1951 § 281, so long as the gates across public roads crossing the district are kept to a minimum of two as set out in the statute.

Appeal from the County Court of Ellis County; J. W. Burrow, Judge.

The defendant in error was charged with obstructing a public highway. The trial court sustained a demurrer to the evidence and discharged the defendant, and the State appealed on a reserved question of law. Affirmed.

Gerald W. Thomas, County Atty., Ellis County, Arnett, for plaintiff in error.

Tom Z. Wright, Woodward, for defendant in error.

POWELL, Judge.

Herein the parties will be referred to as in the trial court. The State of Oklahoma charged the defendant, Georgie G. Hamilton, by information with the offense of obstructing a public highway, in that he had fenced across a certain designated section line in Ellis County. Trial by jury was waived by the parties, and the case was tried before a special county judge, upon an agreed statement of facts. The defendant demurred to the evidence thus submitted, and after argument the court sustained the demurrer, and discharged the defendant. Thereupon, the State excepted to the ruling of the court and gave notice in open court of its intention to appeal to this court on certain reserved questions of law. ¹ Appeal has been duly perfected.

The charge was filed under 69 O.S.1951 § 592, which provides:

'Any person or persons who shall wilfully or knowingly obstruct or damage any public road by obstructing the side or cross drains or ditches thereof, or by turning water upon such road or right-of-way, or by throwing or depositing Osage orange or other brush, trees, stumps, logs, or any refuse or debris whatsoever, in said road, or on the sides or in the ditches thereof, or by fencing across or upon the right-of-way of the same, or by planting any hedge within the lines established for such road, or by changing the location thereof, or shall obstruct said road, highway or drains in any other manner whatsoever, or any person or persons who shall wilfully or knowingly deface, damage, destroy or remove any road sign, sign board, guide sign or sign post shall be deemed guilty of a misdemeanor, and, upon conviction shall be fined not less than five dollars nor more than two hundred dollars, or by imprisonment in the county jail for not exceeding six months, or by both such fine and imprisonment. The road overseer of any district who finds any road obstructed as above specified shall notify the person violating the provisions of this section, verbally or in writing, to remove such obstruction forthwith, and if such person does not remove the obstruction within ten days after being notified, he shall pay the sum of five dollars for each and every day after the tenth day, such obstruction is maintained or permitted to remain; such fine to be recovered by suit brought by the road overseer, in the name of the road district, in any court of competent jurisdiction.'

The case was defended under sections 281 and 282 of Title 69, O.S.A.1951, providing for grazing districts and making lawful the fencing of section lines therein under the provisions there enumerated. ²

The stipulation as to the facts is rather lengthy, so that the material parts will be in most part summarized.

The record discloses that the defendant and his neighbor, Charles Campbell, owned or leased 1,520 acres of contiguous lands in Ellis County, more than two-thirds of which was unsuitable for cultivation, and more than two-thirds of which was being used for grazing purposes. Approximately four weeks prior to the filing of the information, the defendant and Campbell entered into a written agreement to form a grazing district, purportedly under the provisions of 69 O.S.A.1951 § 281, and a copy of said agreement was filed with the Board of County Commissioners of Ellis County, and a copy with the County Attorney of that county.

It is agreed that the area in question is deep rolling and covered with shinnery and bunch grass, and that on the average approximately 30 or 40 acres of such lands are required on an animal basis to support a cow and calf, and that there are no natural surface streams or ponds and that underground water when it is found is at a depth of around 200 feet, which, the parties agree, makes the cost of wells prohibitive for small pastures.

It is further stipulated that on June 14, 1955 Charles Campbell, defendant's neighbor, was the owner or lessee of 160 acres of grazing land in section 4, township 19 north, range 21 west of the Indian Meridian, being the southeast quarter of said section; and that the defendant was the owner or lessee of 1,360 acres of grazing lands in sections 3, 4, 5 and 6, in township 19 north, range 21 west, sections 32, 33 and 34 of township 20 north, range 21 west. ³

The road herein complained of is stipulated as being a road an 'indefinite' distance west of the section lines involved, being a north-south roadway between sections 3 and 4 running through the east edge of section 4 west of the section line; that at the northern end of this road between sections 3 and 4 it continues to the north, partly on defendant's land in section 33, and partly on the section line. The road is not used as a mail route. There is a swinging gate at the north end of the road as it leaves defendant's property, and there is a swinging gate at the half-section line between sections 3 and 4 on the lands of Charles Campbell just before it enters defendant's lands as it goes north. It is stipulated that the gates, along with the bearing and holding posts thereof, comply in all respects with the requirements of 69 O.S.A.1951 § 282.

It is stipulated that the Board of County Commissioners of Ellis County on June 7, 1955 caused defendant's cattle guards beside the swinging gates in question to be destroyed and thereupon defendant fenced up the spaces formerly occupied by the cattle guards. Defendant stipulated: 'That defendant will permit public road designated by the County Commissioners of Ellis County, Oklahoma, to be run anywhere across the lands owned or leased by him in Ellis County. * * * Further, defendant will erect substantial swinging gates, complying in all respects with Section 282, Title 69 O.S.A., at any place said designated public road or roads intersect a...