De La Guerra v. Newhall

53 Cal. 141 | Cal. | 1878

By the Court :

The eighth section of the Act of February 4, 1874, to protect agriculture and to prevent the trespassing of animals upon private property in certain counties, (stats. 1873-4, p. 50) provides that “ the owner or occupant of any land or possessory claim, whether enclosed or not, independent of the foregoing provisions of this Act, and if he fail to avail himself thereof, may maintain an action, provided such action be commenced within sixty days,” etc. The defendants allege that the plaintiff did avail himself of the provisions of said Act, respecting the alleged trespasses mentioned in the complaint, and took up large numbers of the cattle of the defendants, etc. The following special issues were submitted to the jury: “ Did plaintiff avail himself of the provisions of an Act of the Legislature of this State, entitled an Act to protect agriculture, etc., passsd February 4, 1874, at any time between the dates mentioned in the complaint, fifth day of May and fifth day of July, 1877, with respect to the cattle of defendants; and did plaintiff take up and corral any of defendants’ cattle on the lands described in complaint under the provisions of said Act, between said dates ? ” And the jury returned thereupon the following verdict: “Answer—Yes.” They also returned a general verdict for the plaintiff, and assessed his damages at two thousand two hundred and fifty dollars.

The complaint alleges only one trespass, and there is nothing in the special verdict, nor in the record, from which it can be ascertained that the trespass for which the cattle were taken up by the plaintiff, (and it is not found how many were so taken up) was a distinct trespass; but from the record it is to be presumed that each trespass was a part of the one continuous trespass mentioned in the complaint. The party injured by such trespass is not authorized to divide it up into several causes of action, either with respect to the means by which the trespass was committed, or the time of its commission, so as to maintain separate actions or proceedings for such cause of action. No authorities need be cited in support of this proposition. Nor does the eighth section, or any other jirovision of the Act under consideration, contemplate a recovery of a part of the damages for the trespass by proceeding under the Act, and another part of the damages for a portion of the same trespass by means of an action at law.

Judgment and order reversed, and cause remanded for a new trial.