Fall Creek Sheep Co. v. Walton

STEWART, J. This is an action of claim and delivery of certain hogs of the value of $995. The plaintiff claims to be the owner and entitled to the possession of the property and that the defendant wrongfully and unlawfully seized and took possession of the same. The defendant in his answer admits the taking of the hogs, and that plaintiff was the owner of the property at the time of the taking, but denies that the seizure was unlawful, and alleges that he is in possession and entitled to possession by virtue of a homestead entry to certain lands in Cassia county, Idaho, and that said hogs were trespassers thereon, and were taken up by defendant pursuant to the provisions of chap. 12, art. 1 of the Rev. Codes of Idaho. The defendant also alleges that the title of said property has been vested in the defendant under chap. 12, art. 1, and that notices were given as required by see. 1280, Rev. Codes. The cause was tried with a jury and a verdict was rendered in favor of the defendant, that the defendant was entitled to the ownership and possession of the hogs or the value thereof, $995, together with costs. Judgment was rendered accordingly, and this appeal is from the judgment. The first and main question urged for reversal by appellant is based upon the order of the trial court in overruling a motion for an instructed verdict for the plaintiff. The grounds of the motion in substance are: First, that the land upon which the defendant claims the hogs trespassed had been with — 764 — drawn from settlement and occupancy prior to the 9th day of September, 1909, and was not subject to settlement or occupancy at any subsequent.date, and that the acts of the registrar and receiver of the Hailey land office in accepting the defendant’s homestead entry were contrary to law and void; second, that the record does not show any actual damages were sustained by the defendant by reason of the trespass of the hogs, nor any presentation by the defendant to plaintiff of any proper claim for charges in accordance with sec. 1280, Rev. Codes; third, that the claim of-ownership of the hogs, through forfeiture by plaintiff by reason of its failure or refusal to pay the sum demanded for damages, irrespective- of whether the same was reasonable, just or proper, is the taking of plaintiff’s property without due process of law, and that if sees. 1279, 1280, 1281 and 1282 of the Rev. Codes are to be construed as authorizing such taking of the property of another, said sections are unconstitutional, and in violation of sec. 13, art. 1 of the constitution of the state. This motion presents the question whether the defendant at the time he seized the hogs on October 4, 1911, October 15, 1911, and October 24, 1911, had such ownership or occupancy of the lands where the hogs were taken as to give the defendant the relief provided for by chap. 12, art. 1, of the Rev. Codes. Sec. 1278 of said chapter provides: “The owner or occupant of premises is not required to fence against hogs.” Sec. 1279 provides: “If any hog is found trespassing, the occupant or proprietor of the premises may take up and safely keep, at the expense of the owner thereof, such hog, and hold the same until the payment of the expense and damages by the owner, and shall be allowed fifty cents per head additional for each animal so taken up.” Sec. 1280 provides for notices to be given by the person taking up such animal, and sec. 1281 provides that if the owner and taker-up of such hog cannot agree to the amount of damage, they must select a disinterested person, who must hear the facts from both parties and fix the amount of damages to be paid, and that such damages are a lien upon the hog and other personal property; and then fol — 765 — lows the time of payment, the amount of damages to be paid, and such amount is declared a lien; and if the same is not paid, the taker-up shall notify the constable, and levies shall be made and the property sold to pay the fees and the keeping charges and the damages. Sec. 1282 provides also that if the owner does not appear and substantiate his title and pay the charges within thirty days after the notice, the absolute ownership of the hogs shall be vested in the person taking up the hogs, provided he shall keep a copy of the notices posted, which shall be indorsed with the date and manner of posting and the places where posted, and such notices shall have the same force and effect as a bill of sale of such hogs. Under the provisions of the foregoing sections, the defendant’s rights and claim of ownership or right of possession of the hogs seized and sold depend entirely upon the question whether the defendant has shown facts to justify the verdict. That is,-was the defendant’s ownership or occupancy of the land where the hogs were trespassing established and proven in this ease, and did the defendant comply with the statute in making the seizure and the sale of said property? Thomas' E. Walton made homestead filing, serial number 06825, September 7, 1909, for the south half of the northeast quarter, the northwest quarter of the southeast quarter, and the northeast quarter of the southwest quarter of section 15, township 9 south of range 29 E., B. M., and established his residence thereon on the 15th day of September, 1909, and has resided there with his family ever since said date up to the trial, farming and cultivating the same. The record also shows that the hogs were trespassing upon the land above described, eating and destroying crops planted and cultivated by the defendant, and on October 4, 1911, he shut up three head; on October 15,1911, thirty-six head, and on October 20, 1911, forty-six head; and on each of the foregoing dates posted notices of the taking up of such hogs. After these notices were posted an attempt was made to arbitrate the damages, but no arbitration was effected. It appears that the defendant’s entry allowed by the registrar and receiver of the local land office was in part with — 766 — drawn from entry, under the reclamation of June 17, 1902, on January 27, 1904, and the remainder was withdrawn on September 17, 1909, and by reason of such withdrawal the commissioner of the general land office held the defendant’s entry for cancelation December 27, 1909, and the defendant was so notified. The defendant appealed to the Secretary of the Interior and the action of the commissioner in canceling such entry was affirmed on September 7,1910. A motion was-made for a review, which was denied on the 30th of March, 1911, and on July 5,1911, the commissioner canceled the entry. .A mineral protest was also filed against such entry by R. B. Greenwood, but was not considered by the commissioner of the general land office further than that the department held the cancelation of the defendant’s homestead entry rendered action on the protest unnecessary. After the Secretary of the Interior had affirmed the action of the commissioner the defendant applied to the department for further relief, and the reclamation service made an investigation and had certain surveys made, and on the 28th of December, 1911, the assistant secretary of the interior finally decided and held, after reciting the facts as to the defendant’s homestead entry above stated, and the mining location of R. B. Greenwood, that Greenwood’s protest against the defendant’s entry was unfounded and was without merit and did not warrant rejection of the defendant’s homestead claim, and ordered a dismissal of the same, and further ordered that “the reclamation service will then recommend the annulment of so much of the withdrawal order as affects the portion of Walton’s claim above the contour of the line so marked upon the ground.....This will enable Walton to secure title to the part so freed from the withdrawal order by application for reinstatement of his entry, accompanied by his own affidavit showing that he has not alienated, conveyed, or contracted to convey any portion of the lands involved, and that he has not since the date of cancelation of his said entry made any other homestead entry or become otherwise disqualified to take lands under the homestead law.” This order and decision of the assistant secretary of the interior is dated December 28, 1911, and clearly recog — 767 — nizes the existence at that time of the homestead entry of the defendant. The foregoing is the record title claimed by the respondent to the lands included within the homestead entry. The appellant ’s title is a mining location and a lease from the locator for the same land from Greenwood, who had made the mineral location. It appears from the evidence that after the defendant made his homestead entry he immediately went into the possession of the same and built a house and made improvements upon said homestead and remained in possession and control of said homestead thereafter up to the time of the trial. The evidence also shows that at the time the hogs went upon said homestead the .defendant had about thirty acres of wheat and that the said wheat had been stacked and this was eaten by the hogs; that in figuring the damages he sustained he estimated the rate per bushel at sixty cents; that he had cultivated and produced 150 sacks of potatoes in the garden. The defendant also testified that he had 148 bushels of grain, which he fed to the hogs after he had them taken up, and that such grain was worth $1.16 a hundred; that the damages as a whole were estimated at $663. There is evidence also in the case that the plaintiff was in possession at different times of portions of the homestead, and that sheep were grazed thereon. Upon these issues the court fully instructed the jury upon the law and they found for the defendant. Sec. 5983, Rev. Codes, which was incorporated in the Rev. Stats, in 1887 and incorporated in the Rev. Codes in the 1908 edition, was in force and effect at the time the defendant’s homestead entry was made and continued in force at the time of the trial; it reads as follows: “A certificate of purchase, or of location, of any lands in this state, issued or made in pursuance of any law of the United States, is primary evidence that the holder or assignee of such certificate is the owner of the land described therein; but this evidence may be overcome by proof that, at the time of the location, or time of filing a pre-emption claim on which — 768 — the certificate may have been issued, the land was in the adverse possession of the adverse party, or those under whom he claims, or that the adverse party is holding the land for mining purposes.” This court construed the foregoing statute in the case of Johnson v. Oregon Short Line R. Co., 7 Ida. 355, 63 Pac. 112, 53 L. R. A. 744, and said: “The laws of this state recognize such entry [that is, homestead entry] as private property, and make the certificate of entry primary evidence that the holder thereof is the.owner of the land therein described. (See Rev. Stats., see. 5983.) The words ‘private property’ in sec. 2679 of the Rev. Statutes, quoted above, have no reference to the title as between the private owner and the government of the United States, but relate solely to the railroad corporation.and the private owner. As between the railroad company and the homestead entryman, the latter, after entry, is the owner, and the homestead entry is private property.” Applying this rule to the facts in this case, it is apparent that the respondent, having made his homestead entry, and the land office having issued to such entryman a certificate, and the government having recognized the validity of such entry in the decision rendered on December 28, 1911, this court will be governed by the decision, and will not discuss or decide what title or right the defendant has or will secure from the government, neither will we consider or determine what right or title was obtained by Greenwood, a locator of a mining claim upon said land. We shall be.governed entirely by the laws of this state, which recognize the certificate of location .issued and made in pursuance of the laws of the United States, as prima facie evidence that the holder of such certificate has an inchoate right and title to the land described therein, in the absence of proof that the land at the time of location was in the adverse possession of an adverse party, or a person under whom he claims, or that the adverse party is holding the land for mining purposes. It is apparent that the title and the right of possession of both the plaintiff and the defendant depend upon a right and title acquired by each upon application under the laws of the — 769 — United States and that the government has not asserted any right to said lands in the present controversy. Under such a state of facts, as between the parties to the suit, we are satisfied that the defendant has the right to protect his possession and occupancy of the land, and had a right to seize and take up under the laws of the state, hogs grazing and trespassing upon the same, and that the court did not err in his instructions to the jury upon that question, and the jury did not err in their verdict in finding that there was a trespass upon the occupancy and ownership of the defendant by the hogs owned by the plaintiff. It is also argued in this case that the finding of the jury and the judgment are void as to what, if any, actual damages were sustained by the defendant by reason of said alleged trespass. There is nothing in this contention. There was evidence as to the damage and the jury found the amount, and the evidence tends to prove actual damages as found by the jury. It is also argued that the verdict and judgment are void because the defendant did not present to the plaintiff any proper claim for charges in accordance with sec. 1280 of the Eev. Codes, from which the jury could find a refusal of the plaintiff to pay the same as by said section required. This section provides: “Any person taking up a hog under this article, must immediately thereafter write out three notices in a plain, legible hand, giving correct description thereof, with the marks and brands, if any, on said hog, and the time and place of taking up, and at once post up’ said notices in a good and substantial manner in three conspicuous places in the precinct in which said hog was taken up.” The evidence shows that the defendant gave the notices as required by the statute, describing the marks and brands on the hogs and the time and place of taking up, and posted such notices in proper manner, and that the plaintiff had full knowledge of the same, and this is evidenced further by the statements made by an employee of plaintiff, who testifies that negotiations were had with the defendant about settling such damages. — 770 — It is also argued that sees. 1279, 1280, 1281 and 1282, being the various sections heretofore referred to in this opinion, are unconstitutional, and provide for the taking of property without due process of law. Under the provisions of sec. 1279, where a hog is found trespassing, the occupant or proprietor may take the animal up at the expense of the owner of such hog, and hold the same until the payment of the expense and damages by the owner, and he shall be allowed fifty cents per head additional for each animal so taken up. This section of the statute creates a lien upon the animal taken up for the keep and expense of the animal trespassing; and sec. 1281 provides that if the owner and taker-up cannot agree, that a disinterested person must, after hearing all the facts, fix the amount of damages, and the same are a lien upon said hog; and if said amount is not paid within five days, together with costs of keeping said hog, the taker thereof .notifies the constable who levies upon .the hog and the same is sold, after giving notice; and if the owner does not appear and substantiate his title and pay the charges within thirty days after the notice has been given, then under the provisions of sec. 1282 the ownership shall be vested in the person taking up the hog. This chapter, of which these different sections are a part, was enacted for the purpose of creating a lien upon hogs committing trespass, and the lien thus created may be enforced and satisfied to the extent of the damages, as provided in sec. 1281. In the present case there was no arbitration. The plaintiff refused to arbitrate upon the ground that there was no liability, and refused to pay the expenses or the fifty cents per head allowed by the statute, and in such a case sec. 1282 provides that if the owner or person entitled to the possession of such hogs does not appear and substantiate his title thereto and pay the charges thereon within thirty days after notice has been given as provided, absolute ownership of such hogs shall be vested in the person taking up the same. The charges referred to are the charges specified in sec. 1279 and are as follows: If a hog is found trespassing, it may be taken up and safely kept until the payment of the expense and damages — 771 — by the owner, and the taker-up shall be allowed fifty cents per head additional for each animal so taken up. These expenses and damages, thus specified, were not paid in this case, although the defendant demanded a specific sum of $663, neither did the plaintiff tender any sum whatever for the damages, or for the taking up of said property, or the expense of keeping the same, and at the time demand was made for the possession of said hogs by plaintiff no offer was made to pay any damages or expenses whatever. Under the provisions of sec. 1279 the statute gave him a lien upon said property for such expenses and damages, and the plaintiff had no right to maintain an action for claim and delivery without satisfying such claim by proper arbitration or by agreement as provided in sec. 1281. The refusal after full notice to arbitrate, and the refusal to agree upon the damage and expenses, and the failure to appear and substantiate the title of plaintiff, vested the title of said property in the person taking up said property. The supreme court of California has had under consideration in two different cases certain legislative acts with reference to trespassing animals upon private lands and the constitutionality of the same. While the statutes enacted in California and considered in the cases hereafter cited are not in all respects .the same as the statute now being considered, yet we think the principles announced in those cases clearly apply to the questions involved in the present case. We refer to Rood v. McCargar, 49 Cal. 117, and Wigmore v. Buell, 122 Cal. 144, 54 Pac. 600. In the latter case the court said: “The obvious purpose of the act is to afford the owner of land trespassed upon a speedy and somewhat summary remedy by giving an action both against the owner if known and against the animals if he is not known, and the attachment against the property may be given in both cases.....An act should be given a construction, if it can be done within the rules of law, to carry out its obvious purpose. The right to distrain is an option given to the land owner which he may exercise for two days without instituting any legal proceedings whatever, the declared purpose being to enable the land owner — 772 — during that period to ascertain the owner of the animalf¡ and to determine which remedy given by the act the land owner will resort to.” The court also in that ease refers to the contention of the appellant, and says: “Appellant’s contention would compel the land owner, where the owner of the animal is known as well as where not, to personally hold in his possession the trespassing animals under the distraint or lose his lien, which we do not think comports with the purpose or language of the act. ’ ’ So, in the present case, under the provisions of sec. 1279, the owner or proprietor of land where a hog is found trespassing may take the animal up at the expense of the owner and hold the same until the payment of the expense and damages by the owner, and he shall be allowed certain amounts, and is given a lien upon the animal taken up and the expense of the animal trespassing. The respondent in this case took possession of the hogs in question under this statute, and there can be no question under the authorities but that such section is constitutional and clearly within the power of legislative enactment. ■Sec. 1281, which is a part of the same chapter, which provides for arbitration and assessment of damages, was not and could not be complied with in this case, because the appellant refused to arbitrate, and the remedy left to respondent was that provided in sec. 1282. In vol. 2, p. 360, Am. & Eng. Ency. of Law, the author lays down the rule of law which seems to have been followed by this court in the case of Sifers v. Johnson, 7 Ida. 798, 97 Am. St. 271, 65 Pac. 709, 54 L. R. A. 785, and says: “Statutes which provide for the seizure of animals damage feasant, and their sale if not redeemed within the proper time, are generally considered as a police regulation and properly within the scope of governmental powers, and not in violation of the constitutional provision that no person shall be deprived of life, liberty, or property, but by due process of law. “(e) Where statutes provide for the taking of trespassing animals damage feasant, all proceedings must be strictly in — 773 — conformity thereto, or the distrainor will be liable as a trespasser ab initio.” In vol. 10, Am. & Eng. Eney. of Law, p. 299, the author, in discussing what notice is guaranteed, said: ‘ ‘Due process of law does not necessarily require that a person whose property is sought to be affected should have personal notice of the proceeding. The notice may be either actual or constructive, and it is sufficient if a notice is provided by which it is reasonably probable that the person to be affected will be apprised of the proceedings against him. “6. Due process of law requires an orderly proceeding adapted to the nature of the case, in which the citizen had an opportunity to be heard and to defend, protect, and enforce his rights, by establishing any fact which, under the law, would be a protection to him or to his property. It has been said that it matters not that it may be difficult for him to defend under the law, so long as it is not impracticable for him to do so by the use of such reasonable efforts as the owners of property may generally be supposed to be capable of. His opportunity to defend, however, must not be merely colorable and illusory.” We think under the authorities that the seizure of the respondent was lawful; that the statute gave him the lien upon the property seized; that the appellant had notice of such seizure; that the appellant had in no way paid, or offered to pay, any damages; neither did the company offer to settle or pay the charges or expenses of keeping the animals seized by the respondent, nor appear and substantiate its title under the provisions of sec. 1282, Eev. Codes. This court, in the ease of Sifers v. Johnson, 7 Ida. 798, 97 Am. St. 271, 65 Pac. 109, 54 L. R. A. 785, had under consideration the recovery of damages by trespass of sheep upon the premises and within two miles of the same, and in discussing the right of recovery in that ease the court referred to the different sections of chapter 12 of the Rev. Codes (secs. 1340-1344, Eev. Stats.), which are involved in the present case, and said: “These statutes, like those in question here, were enacted to protect the farmer from annoyance and injury caused by — 774 — the trespassing of hogs, and to save them expense in fencing against hogs.....It is evident that in passing the statutes cited, relative to the running at large of hogs and the herding and grazing of sheep within two miles of dwelling-houses, the legislature intended to further the public good and preserve the peace, by preventing those conflicts which would naturally result from the herding of sheep about the dwellings of settlers. The statutes were intended to promote the public good and avoid danger and injury to the citizens .... and as those questions are of legislative discretion and not judicial, we are not authorized to hold the statutes unconstitutional.” Under the facts in this case there were no damages fixed by arbitration, and the respondent, the taker-up of the property, was not required to notify the constable to make levy and sale as provided by see. 1281. The respondent was forced to rely upon his lien conferred by sec. 1279 and the title conferred upon him by the provisions of sec. 1282 as a defense to the plaintiff’s claim to the possession of said hogs, and we think that the jury were justified in finding for the defendant on the right of possession. We are inclined to think that chapter 12 is a plain and speedy method of promoting the public good and of protecting lands where hogs and other animals are permitted to run at large in violation of law, and is clearly within the power of legislative enactment, and that it is sufficient in its provisions and gives sufficient notice to pass title to the taker-up upon compliance therewith, and is not in violation of the provisions of sec. 13, art. 1 of the constitution of the United States. Counsel for appellant assign as error the giving of a certain instruction embracing the part of sec. 1281 which relates to arbitration. Beferring to the instruction given, we find that the court told the jury “that when one who takes up stock as trespassers or strays, that notices shall be posted up in at least three conspicuous places in the precinct wherein the alleged trespassing was committed, and that if no one claims the trespassing animals or pays for the damage actually sustained by the party taking them up, that they become his property.” That instruction is in accordance with sec. 1282, — 775 — and as a part of said instruction the court also said: “It seems in this case, gentlemen of the jury, that efforts were made by both plaintiff and defendant to settle or arbitrate their differences as to the alleged trespass of the animals, and that it is your duty to determine from the evidence who is to blame, if anyone, that no settlement was made.” This latter part of the instruction is in accordance with the evidence that while parties to the action had conversations and talked about arbitration, they never did agree, and never had any arbitration, and the court recognized that condition. The damages not being paid for, therefore sec. 1282 applied as the law to the facts in the case, and this instruction was correct. While counsel for appellant devotes some attention in his argument to the fact that the evidence does not sustain the verdict of the jury as to the amount of damages, we are unable to find any specific error assigned covering this question; neither is there any instruction in the record excepted to wherein the court instructed the jury upon this question. For this reason we will not consider this question. We have carefully gone over the record in this case and find no error which warrants a reversal of the judgment. The judgment is affirmed. Costs awarded to respondent. Sullivan, J., concurs.