Strickland v. Geide
| Decision Date | 31 July 1897 |
| Citation | 49 P. 982,31 Or. 373 |
| Parties | STRICKLAND v. GEIDE et al. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Gilliam county; W.L. Bradshaw, Judge.
Action by H.C. Strickland against B. Geide and others. From judgment for plaintiff, defendants appeal. Affirmed.
W.H. Wilson and T.R. Lyons, for appellants.
F.P Mays, for respondent.
This is an action of trespass, wherein it is alleged that defendants unlawfully and willfully permitted their band of sheep to be herded, and unlawfully and willfully did herd said band, upon the premises and lands of plaintiff. The action was commenced in the justice court, and upon appeal to the circuit court and trial there, judgment was rendered in favor of plaintiff from which the defendants appeal to this court.
Upon the threshold of our inquiry touching the errors assigned, it becomes pertinent to determine the effect of certain statutes heretofore enacted relating to stock and fencing in respect of Gilliam county, from which the action emanates. In 1870 the legislature passed an act regulating fencing and inclosures, and providing a remedy against stock breaking into such inclosures, but excluded Umatilla county from its operation. For the first trespass the owner is required to make reparation to the party injured for the true value of the damages sustained; and for every trespass thereafter double damages are recoverable before any court having cognizance; and for a third offense, from any animals breaking into such inclosures, the animals themselves may be taken into custody and kept at the expense of the owner until the damages are repaired. In October, 1872, the legislature passed an act entitled "An act in relation to trespass by cattle, and regulating fences in the counties of Umatilla and Wasco, in the state of Oregon." The first section provides that "no action shall be maintained for damages done by any horse, mare, gelding, mule, ass, jenny, foal bull, stag, cow, ox, steer, heifer or calf, upon the premises of another, unless the person seeking such damage shall allege and prove upon the trial thereof that said premises were, at the time of the commission of said damage, inclosed with a lawful fence." Section 2 provides what manner of fence shall be deemed lawful, and section 3 gives the remedy. Any party injured by reason of any such stock trespassing upon premises or lands so inclosed may recover damages for such injury before any court having jurisdiction, and the animals trespassing may be at once taken and held as security for the payment of the damages and costs, provided that the person so holding such animals shall within three days notify the owner thereof in the manner prescribed. The question here is, how do these acts affect Gilliam county, which has since been created out of Wasco county, as it pertains to sheep? There is no doubt but that the act of 1870 applied to the territory comprising the county of Gilliam, and that sheep came within the purview of the act, so that it was necessary to fence against them, as well as other stock, if damages for trespass were to be insisted upon. Campbell v. Bridwell, 5 Or. 311. Now, it is contended by plaintiff that the act of 1872 repealed the act of 1870, in so far as it pertains to sheep within Wasco county, out of which Gilliam was since carved, and therefore that it is not necessary to show the existence of a lawful inclosure before damages can be recovered for trespass by this species of stock. The defendant combats this contention, and holds that such is not the effect of the act of 1872.
It is a rule of law, sanctioned by this court, that whenever two acts are repugnant, one inimical to the other, so that both cannot stand, the later will operate as a repeal of the earlier by implication, without any express words of repeal; and such will be the effect, even when they are not repugnant in all their provisions, if the new statute revises the subject-matter...
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State v. Buck
...the subject-matter of the old and is plainly intended as a substitute it will operate as a repeal of the old statute. Strickland v. Geide, 31 Or. 373, 376, 49 P. 982. One statute is not repugnant to another, unless they relate to the same subject and are enacted for the same purpose. * * *'......
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Bilderback v. United States, Civ. No. 79-1221
...statute does not change the common law, it remains in effect. French v. Cresswell, 13 Or. 418, 422, 11 P. 62 (1886); Strickland v. Geide, 31 Or. 373, 378, 49 P. 982 (1897); Pacific Livestock Co. v. Murray, 45 Or. 103, 107, 76 P. 1079 (1904). There being no statute applicable under the above......
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City of Salem v. Oregon-Washington Water Service Co.
... ... implication and yields to the later provision. Phipps v ... Medford, 81 Or. 119, 156 P. 787, ... [23 P.2d 546] ickland v. Geide, 31 Or. 373, 49 P ... 982. That is, the repeal has been accomplished unless article ... 11, § 5, Oregon Constitution, above quoted, ... ...
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... ... Potter's ... Dwarris, §§ 154, 155, and cases there cited; Winters v ... George, 21 Or. 251, 27 P. 1041; Strickland v ... Geide, 31 Or. 373, 49 P. 982; In re Booth's ... Will, 40 Or. 154, 61 P. 1135, 66 P. 710; Cunningham ... v. Klamath Lake R ... ...