Strickland v. Geide

Opinion by Mr. Justice Wolverton. 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’s 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 [375] 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 [376] 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 thát 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 of the old, and is plainly intended as a substitute for the old in toto: Continental Insurance Company v. Riggen, 31 Or. 336 (48 Pac. 476), and Little v. Cogswell, 20 Or. 345 (25 Pac. 727). Such rule is not inimical to the doctrine that repeals by implication [377] are never favored, nor to that which gives effect to several statutes upon the same subject whenever it is possible to do so; and it is firmly established elsewhere: Dexter Road Company v. Allen, 16 Barb. 15; Roche v. Mayor, etc. 40 N. J. Law, 257; Daviess v. Fairbairn, 3 How. 636; Murdock v. City of Memphis, 87 U. S. (20 Wall.), 590; Swann v. Buck, 40 Miss. 268; City of Sacramento v. Bird, 15 Cal. 294; and Endlich’s Interpretation of Statutes, §§ 200, 205. Manifestly, it was the intention of the legislature, by the act of 1872, to provide a substitute in toto for the former act, and to prescribe the only regulations requisite to be observed in the construction of fences within the territory then comprised by Wasco County. The act specifies with much particularity how the different kinds of fences shall be constructed, and provides that no action shall be maintained for trespass by horses and cattle unless it shall be made to appear that the premises so damaged were inclosed with a lawful fence; and it is certain that the legislature contemplated no such absurdity as that a person residing in the county should build two kinds of fences in order to protect his inclosures from trespass by all kinds of stock, or that there should be one remedy for trespass by sheep and swine upon lands inclosed by one kind of fence, and another covering damages for trespass by cattle and horses upon lands inclosed by another kind of fence. It was contemplated, undoubtedly, that the act of 1872 should be the only legislative enactment touching or regulating the subject-matter thereof as it applied to that county, and this would leave the matter, as it pertains to stock [378] other than cattle and horses, to rest where it did prior to any enactment upon the subject. That such is the proper inference of legislative intendment is in some way corroborated by the fact that both Umatilla and Wasco counties are within the purview of the act, and, while the former fence law applied to Wasco, it did not apply to Umatilla, and it was probably contemplated that a law identical in its effect should apply to each of said counties. This interpretation seems to have been adopted in Bileu v. Paisley, 18 Or. 47 (4 L. R. A. 840, 21 Pac. 934). Such being the state of the law, we must turn to the common law to determine whether plaintiff has a remedy upon the complaint filed,-and this question has been decided favorably to the plaintiff in French v. Cresswell, 13 Or. 418 (11 Pac. 62), upon a complaint identical in form, and reaffirmed in principle in Bileu v. Paisley, supra-, and while, if this latter question was a matter of first impression, our decision might be different, we feel constrained to treat it now as stare decisis. Another question is made upon the record touching the admission of certain testimony relating to the value of the lands before and after the trespass, in order to determine the amount of damages, the plaintiff testifying that they were worth $2,000 before and $1,500 after, and, therefore, that he was damaged in the sum of $500; but, whether the admission of this testimony was error or not, it is manifest that defendants were not materially damaged by it, the verdict being for $25 only. In support of this view, se& French v. Cresswell, supra. Affirmed.