75 P. 64 | Idaho | 1904
This is an appeal from a judgment for one dollar damages and two dollars costs. It has traveled all the way from the justice’s court of Washington county via the district court of the third district, but shows no evidence of fatigue nor loss of energy or vitality. Prom the length of the briefs one would infer that it must have had succor and comfort from generous counsel.
The action was prosecuted under sections 1210 and 1211 of the Revised Statutes, commonly designated throughout this state as the “two-mile limit law.” The record discloses that on the nineteenth day of May, 1902, at the precinct of Council in Washington county, the defendant was driving about, one
Appellant argues that the evidence is not sufficient to support the verdict, for the reason that he was not herding or grazing his sheep within the meaning of section 1210, Eevised Statutes, which is as follows: “It is not lawful for any person owning or having charge of sheep to herd the same, or permit them to be herded on the land or possessory claims of other persons, or to herd the same or permit them to graze within two miles of the dwelling-house of the owner or owners of such possessory claim.”
The important question presented for our consideration is: Does the statute undertake to prohibit the driving of sheep through the state or from one point to another therein?. It certainly does not. The legislature in making it unlawful to “herd” sheep or permit them to “graze” within two miles of the dwelling-house of the settler never meant to include in those terms the mere driving of sheep through the country, or from •one feeding or grazing place to another. If they had meant such a thing their acts would have been futile and in violation ■of both the state and federal constitutions as well as the. acts
The judgment is reversed and cause remanded. Costs awarded to appellant.