Walker v. Bloomingcamp

• Citation: 43 P. 175,34 Or. 391
• Parties: WALKER v. BLOOMINGCAMP et al. [1]
• Decision Date: 13 January 1896
• Court: Supreme Court of Oregon

43 P. 175

34 Or. 391

WALKER v. BLOOMINGCAMP et al. ^[1]

Supreme Court of Oregon

January 13, 1896

Appeal from circuit court, Klamath county; W.C. Hale, Judge.

Action of trespass by W. Albert Walker against Henry Bloomingcamp and others. A demurrer to the complaint was overruled, and defendants appeal. Reversed.

Henry L. Benson and W.R. Willis, for appellants.

L.R Webster, for respondent.

BEAN C.J.

This is an action brought to recover for the alleged trespass of defendants' sheep upon the uninclosed lands of the plaintiff. The complaint, after alleging plaintiff's ownership of the land, avers: "That on divers days and times between April 13, 1894, and April 21 1894, the defendants unlawfully and willfully herded, and permitted to be herded, their bands of sheep upon the above lands, of which plaintiff was, by reason thereof, disturbed in his possession, and plaintiff's grass on said land was trodden down, eaten up, injured, and destroyed, to the plaintiff's damage in the sum of two hundred and forty-five dollars." The defendants demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action; and, the demurrer being overruled, judgment was rendered in favor of plaintiff from which defendants appeal.

The common-law rule by which the owner of domestic stock was made liable for the injury done by them to the uninclosed lands of another is not in force in the portions of this state to which the fence law is applicable. Campbell v Bridwell, 5 Or. 312. Here the rule prevails that uninclosed and unimproved lands are regarded as common of pasturage, and the owner of stock may suffer them to go at large and depasture such lands without being liable in trespass therefor. If the owner of the land would protect himself from such damage, he must inclose it, or keep the stock off in some other way. But the contention for the plaintiff is that this rule applies only to animals running at large, and not to the willful trespass of an owner who knowingly and intentionally drives and confines his stock upon the land of another without his consent or against his will, for the purpose of eating or destroying the grass and herbage growing thereon; and the authorities seem to be to that effect. 7 Am. & Eng.Enc.Law, 892; Lazarus v Phelps, 152 U.S. 81, 14 Sup.Ct. 477; Harrison v. Adamson, 76 Iowa, 337, 41 N.W. 34; Delaney v. Errickson, 11 Neb. 533, 10 N.W. 451; Powers v. Kindt, 13 Kan. 74. But, in our opinion, the doctrine established by these cases cannot be made to apply to this record. The complaint does not aver that the sheep were actually and purposely driven upon the land of plaintiff by defendants, or driven there at all, or kept there without plaintiff's consent, or even that...