Sweet v. Ballentyne

69 P. 995, 8 Idaho 431, 1902 Ida. LEXIS 47

Opinions

QUARLES, C. J.

— The appellant was sued in the justice’s court of Lower Squaw Creek precinct, in and for Boise county, for damages alleged to have been sustained by the respondent by reason of appellant having herded and grazed his sheep upon the lands of the respondent, and within two miles of the residence of the respondent; the damages being alleged to be the sum of $200. On a trial in said justice’s court, respondent recovered judgment, and appellant appealed to the district court, and upon a trial in said district court the respondent recovered a verdict and judgment in the sum of $100 and costs. The appellant .moved for a new trial in the court below, which was denied, and has appealed to this court from the order denying'a new trial, and from the judgment.

The grounds upon which the appellant moved for a new trial, and upon which we are asked to reverse the judgment, are, in brief, that the judgment is contrary to law, and against the evidence.

Upon the first ground named above the appellant attacks the constitutionality of sections 1210, 1211 of the Bevised Statutes of 1887. It is contended by appellant that the said sections violate the fourteenth amendment of the federal constitution; that "it denies to the defendant, and those who come under the statute, equal protection under the law, and deprives them of property without due process of law.” The able counsel for appellant argues that the said statutes are dealing, with an industry regarded as legitimate, and .that sheep-raising and sheep-grazing are "not yet criminal per se, and are industries which are recognized as a rightful and important industry of the state, constituting a basis for legitimate wealth within the state.” This argument has so often been made, and so often rejected by the courts, notably in cases growing out of laws prohibiting the sale of intoxicating liquors, that it is hardly necessary to pursue it here. In Sifers v. Johnson, 7 Idaho, 798, 97 Am. St. Rep. 271, 65 Pac. 709, 54 L. R. A. 785, we held said statutes to be constitutional and a valid exercise of the police power of the state. We are now asked to overrule that decision. Public interests require that statutory and constitutional construction should be uniform, and not vacillating. Having held said statute valid, nothing but the most serious considerations, such as having unquestionably enunciated a rule which is contrary to an thority and reason, will justify the court in reversing its former ruling and laying down a different construction. As said in Sifers v. Johnson, supra, “the police power of the state is very great.” It has also been said by another authority: “The police power includes all measures for the protection of the life, the health, the property, and the welfare of the inhabitants, and for the promotion of good order and public morals.” (See “The Police Powers of the State,” pages 98 and 99, by Mr. Bussell, and authorities cited by him in the notes.) The statutes in question were enacted for the protection of the health, the property, and welfare of the inhabitants of this state, and to promote good order. The statutes cited make it unlawful to herd or graze sheep on the lands of another, or within two miles of the dwelling of another. This is not a new, but an old, statutory regulation in this state. These statutes, identical with their present reading, were enacted while Idaho was a territory, and first in 1875, when they were enacted as local, statutes applying to Alturas, Ada, and Boise counties. (See Idaho Laws, Ninth Sess., p. 110.) By act of January 31, 1883, it was extended to Cassia county. By act of February 13, 1879, it was extended to Nez Perces county. And in 1887 said statutes were made general, and incorporated into the general laws of the state as a part of the Revised Statutes. These statutes were continued in force by the schedule in our state constitution. The act of Congress admitting Idaho as a state accepted and ratified our state constitution, and Idaho was admitted a sovereign state without restriction upon her powers as such. We cannot concede that the police powers of the state do not extend over the public lands within the state.

In his work upon State and Federal Control of Persons and Property, Mr. Tiedeman tersely expresses the rules governing in cases of such statutes. (See quotation from this author in Sifers v. Johnson, supra.) It is a matter of public history in this state that conflicts between sheep owners and cattlemen and settlers were of frequent occurrence, resulting in violent breaches of the peace. It is also a matter of public history of the state that sheep are not only able to hold their own on the public ranges with other livestock, but will in the end drive other stock off the rancie, and that the herding oi sheep upon certain territory is an1 appropriation of it almost as' fully as if it was actually inclosed by fences, and this is especially true with reference to eattlj. The legislature did not deem it necessary to forbid the ruining at large of sheep altogether, recognizing the fact that there are in the state large areas of land uninhabited, where sheep can range without inter-, fering with the health or subsistence of settlers, or interrupting the public peace. The fact was also recognized by the legislature that, in order to make the settlement of our small isolated valleys possible, it was necessiry to provide some protection to the settler against the innumerable bands of sheep grazing in this state. Settlers need the use of the range in their immediate vicinity for their domestic animals. Families living on small farms must of necessity keep some livestock. A milch eow is a necessity to the isolated family living on a small farm miles from market. |Eecognizing tjiat if sheep were permitted to graze at will in thersettled portions of the state, settlers could not go into the small valleys and bu'Id up homes, the legislature passed the statutes in question in order to encourage the settlement of wild lands in this state. Moreover, the said statutes were passed to promote good order, and preserve the public peace, and to prevent those recurring conflicts between settlers and the owners and herders of shc'ep so common in the past.^ Viewed as a measure to preserve good order and peace, to prevent conflicts which violate the peade, to protect the health and comfort of citizens of the state, and to promote and encourage the settlement and development of ¡ the state, the said statutes are wise and beneficent, and must be so recognized by all persons who are acquainted with the conditions in this state, past and present. Nullify the statutes in question, or emasculate their provisions by holding that they are unconstitutional, or that a settler cannot recover damages by reason of sheep destroy'ing all the forage grasses around hiip, and the beneficent objects of the statutes are defeated; and tie result will be, in the end, that isolated settlements must be abandoned, and the land in the state become one immense sheep pasture, to the detriment of the farming and mining interests; and settlement of the public lands will be retarded; the building up of homes on the public domain will almost stop. Now, it is the policy of our laws, both state and federal, to encourage the settlement of the public lands and the building of homes thereon. This is a wise policy, and in its furtherance the statutes in question were enacted. And in line with said policy the federal government has not only held out inducements to settlers to locate upon the public lands, surveyed and unsurveyed, but has made it a criminal offense for any persons or person to fence any of the public lands of the United States, except where they in good faith intend to acquire title thereto under the land laws of the United States.

The contentions of appellant are to some extent inconsistent. He argues that sheep-men have a right to pasture the public domain, and have a property interest in the grasses growing thereon, and at the same time contends that settlers do not own the grass on the public land within two miles of their residences, and cannot recover damages for loss of such grass when destroyed by sheep in violation of the statutes. The argument proves too much. If the statutes in question violate the fourteenth amendment of the constitution by depriving sheép owners of property grass within two miles of dwellings without due process óf law we cannot see how it can be contended that the settler, who has been encouraged by the owner, the general government, to settle upon its lands, has no property interest in the grasses growing upon such lands. Have the sheep owners the exclusive right to the grasses growing on the public lands, and the settler no right to the same? The owners of sheep, do not permit them to roam at will, but they are under the immediate control of herders, who have shepherd dogs with them, and wherever they graze they take full possession of the range as effectually as if the lands were fenced. The evidence in this case shows that appellant’s herder, with his dogs, was chasing the cattle of respondent in the immediate vicinity of respondent’s home. It is a matter of common observation and experience that sheep eat the herbage closer to the ground than cattle or horses do, and, their hoofs being sharp, they devastate and kill the growing vegetation wherever they graze for any considerable time. In the language of one of the witnesses in this case: “Just as soon! as a band of sheep passe* over, everything disappears, the same as if fire passing over it.” It is a part of the public history oi! this state that the industry of raising cattle has been largely destroyed by the encroachments of innumerable bands of sheep. Cuttle will not graze, and will not thrive, upon lands where sheep are grazed to any great extent.

The statutes in question make it a trespass for the owner, or person having the charge of sheep, :o graze or herd them within two miles of the dwelling of another. These statutes make it a nuisance to graze or herd sheep within two miles of another. As a penalty for committing such trespass, the trespasser must pay to the injured party all damages that he has sustained. This is in the nature of a penalty! and the only penalty prescribed in the statutes. The statuses recognize a property interest in the grasses growing on the public domain, within two miles of the dwelling of a settler, .n common with others, but exclusive as against the owners and herders of sheep, who are prohibited from grazing or herding sheep within two miles of inhabited dwellings. Can it be said that the settler is not injured'when sheep are herded and grazed all around his home, and the vegetation thereby destroyed? His injuries, so far as the grass alone is concerned, deperds upon circumstances. If he only has one cow to pasture, he is not damaged or injured as much as if he has ten. He majr be damaged by having to smell dead sheep, or by having to use water polluted by them, or by actual injury to his own land, or improvements by reason of sheep being grazed or herded thereon. The smell of sheep is offensive to ipany persons, and especially so where they are herded in large bands. Our legislature, in section 3620 of the Revised Statutes of 1887, has defined a nuisance as follows: “Anything which is injurious to health or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property,” etc. If large bands of sheep are permitted to be herded or grazed around the yards and homes of settlers, it would certainly interfere with their comfortable enjoyment of life and property. It is a matter of common experience that a large band of sheep to the windward affects one’s sense of smell when at a considerable distance away. It is argued by appellant that the statutes in question arbitrarily fix the distance at two miles from inhabited dwellings, within which sheep may be grazed or herded, and that this provision is arbitrary and unreasonable. The same objection could be made if the distance was fixed at two feet, or two hundred feet, or two hundred yards, instead of two miles. We think the proper bounds within which sheep should not be grazed or herded, with relation to the homes of others, is a matter of legislative, and not judicial, discretion. The legislature, being authorized to prohibit the running at large of sheep, are authorized to prohibit the grazing or herding the same within two miles of inhabited dwellings, and this court is not authorized to disturb the legislative decision in this respect. It is true that the statutes in question interfere to some extent with the raising of sheep, but they apply to all people in the same class, and as to whether the public generally shall suffer inconvenience, or whether the sheep owners and sheep herders shall be inconvenienced, is a matter for legislative determination. Mr. Tiedeman, in his work on State and Federal Control of Persons and Property, at page 732, speaking about the principle in question, very tritely, and we think correctly, says. “It is cleatiy within the legislative discretion to determine whether the private interest or the public good shall yield in a case where the two are antagonistic, and to prohibit or permit the doing of what promotes the public welfare, and at the same time causes personal discomfort or injury; and its judgment cannot be subjected to a review by the courts. The courts cannot reverse the legislative decree in such a case; it is not in any sense a judicial question. But the police power of the legislature, in reference to the prohibition of nuisances, is limited to the prohibition or regulation of those acts which injure or otherwise interfere with the rights of others.” In accord with this wise principle, we think that it is competent for the legislature to promote the welfare of the public by providing that sheep shall not be herded or grazed within two miles of inhabited dwellings. These statutes were not intended to prevent owners from grazing sheep upon their own lands, although situated within two miles of the dwelling of another. The evidence in the case of Sifers v. Johnson, supra, summarized in the opinion, shows conditions under which isolated settlers would have to live if no protection was afforded them by law. After a full consideration, we are compelled to reaffirm the validity of the statutes in question, and affirm the decision of this court in Bif&rs v. Johnson, supra.

It is contended that the evidence does not support the verdict, but this contention is principally based upon the idea that destroying grass on the public domain, within two miles of a settler’s dwelling, by herding and grazing sheep thereon, does him no injury for which he can recover damages. What we have hereinbefore said disposes of this contention against the appellant. We have carefully examined the evidence in the ease, and, while we find it conflicting, yet we find evidence supporting the verdict. Plaintiff stated, that the damages to his own land, by reason of appellant’s sheep being herded and grazed thereon, and destroying the grass, amounted to fifty dollars; that, by reason of the grass being destroyed in the vicinity, and within two miles of his dwelling, he was compelled to go frequently from two to five miles to look after his cattle, to his injury in the sum of fifty dollars, and vras compelled to pay sixty dollars for hay, which he would not aave had to purchase but for the destruction of said grasses by said sheep. The verdict was for $100, and the jury evidently believed and accepted the evidence of the respondent, and based their verdict thereon, which, under former decisions of this court, we cannot disturb.

One of the errors assigned is that the court permitted the witness Ireton to answer the following question: “Q. Taking as the fact that he had the amount of stock that he testified to upon the stand, what damage could have been done to him this year by reason of the grass having bejn eaten off on his uninclosed land west of his dwelling-housi, and on the public domain within two miles west of his cwelling-house ?” In answer to the objection, the court said i “He may answer if he knows.” The witness then answered: “Well, at a low estimate, I would think $100.” On cross-examination, the witness stated that his estimate was a mere honest guess, but appellant did-not move to have the answer to the aforesaid question stricken out. We do not think that the action of the court in permitting him to answer the question, being restricted by the court to his own knowledge, was error. A motion to strike said answer would have been proper, and, if made, should have been sustained. It is also shown in the evidence that the sheep of one Frank Manville were herded and grazed within two miles of the dwelling of the respondent. But the evidence of respondent was directed to the damage done by the sheep of appellant during the fifty days that they were herded and grazed on his land, and around his home, in the spring, and to that done by them on their second trip in the fall. Of course, under the law, appellant is not responsible to respondent for damages sustained by the latter by reason of the trespassing of sheep of other people.

The statutes in question give to the injured party double damages for the second trespass. Respondent testified that the injury to his own land, by reason of its being injured while wet and covered with soft snow, and washing in gullies as a result thereof, was $200. This evidence was taken from the jury by the court on the idea that it was not specifically alleged in the complaint. Under the denials in the sixth paragraph of the defendant’s answer, we think that said evidence was within the issues raised, and that same should not have been taken from the jury, but, as respondent has not appealed, that error is of no avail, and we only refer to it for the purpose of showing that the actions and rulings of the district court complained of by the appellant were not prejudicial to him, and consequently do not authorize a reversal.

The judgment of the district court Is affirmed. Costs awarded to respondent.

' Sullivan, J., concurs.