Walker v. Bloomingcamp

Mr. Chief Justice Bean delivered the opinion. 1. 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. 311. 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. 2. 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 (1 ed.), 892; Lazarus v. Phelps, 152 U. S. 81 (14 Sup. Ct. 477); Harri [393] son 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 ayer that the sheep were actually and purposely di’iven upon the land of plaintiff by defendants, or driven there at all, or kept there, without plaintiff’s consent, or even that defendants or their herders knew that the lands belonged to the plaintiff; nor does it state any facts showing a willful or intentional trespass by the owner of the sheep. It is true the complaint alleges that the sheep were unlawfully and willfully herded and permitted to be herded upon the land, but this amounts to nothing more in effect than an averment that the defendants suffered their sheep in charge of a herder to graze and pasture upon the uninclosed lands of the plaintiff. It is well known that the flock masters of the section of the state where this controversy arose are required by the necessities of the case to keep their sheep in charge of a herder, in order to protect them from loss or destruction while ranging and feeding upon the common uninclosed lands. The sheep, however, are generally permitted to roam substantially at will over the range, under the care and supervision of the herder, and if, in doing so, they go upon the uninclosed land of another for the purpose of pasturage, the owner of the land, in our opinion, has no cause of action for the trespass: Fant v. Lyman, 9 Mont. 61 (22 Pac. 121). It follows that when one permits his stock to run at large or graze upon uninclosed land, he is guilty of no actionable injury, and the fact that the character of the stock requires that he should have them in charge of some person to protect them from loss or destruction, does not, in our opinion, change the rule. By so doing he does nothing more than has [394] been by common consent done by the owners of such stock since the earliest settlement of the state, and if the practice is now to be changed it should be done by legislative enactment. The judgment is reversed, and the cause remanded with directions to sustain the demurrer to the complaint. Reversed.