178 N.W. 195 | N.D. | 1920
This is an action to recover damages occasioned by defendant’s horses, cattle, and swine going upon plaintiff’s premises in the fall of 1918, and destroying certain grain in stack. Defendant contends that the action is barred under § 8500, Comp. Laws 1913, for the reason that it was not commenced within sixty days after the injury was inflicted. The sole question presented to this court is whether the action must be commenced within such sixty-day period.
Section 8500, Comp. Laws 1913, reads: “Any person owning or having in his charge or possession any horses, mules, cattle, goats, sheep or swine, which shall trespass upon the lands of another, whether fenced or not fenced, shall be liable to the party injured for all damages sustained by him by reason of such trespassing, to be recovered in a civil action in the county in which such damages occurred, and the proceedings shall be the same in all respects as in other civil actions except .-as herein modified; provided, that no property shall be exempt from execution issued upon judgments obtained under this chapter except absolute exemptions; and provided, further, that the party claiming damages under the provisions of this chapter shall bring an action to recover the same within sixty days after the infliction of such damages.”
Defendant contends that the common-law rule does not obtain in this state; that in the absence of statute, the owner of domestic animals may permit them to run at large at all times, and that those who would avoid injury to their lands from such animals must inclose against them. In other words, defendant contends that the right to recover for damages occasioned by trespassing animals exists only in so far as it is granted by § 8500, supra, and that in absence of such section no cause of action would exist.
The rights and obligations of the owners of live stock have been the subject of a great deal of legislation, as well as of litigation, in this state. See Bostwick v. Minneapolis & P. R. Co. 2 N. D. 440, 51 N. W. 781; Ely v. Rosholt, 11 N. D. 559, 93 N. W. 864; Johnson v. Rick
Section 8500, snpra, was embodied in the Revised Codes of the territory of Dakota of 1877, and has since remained a part of the laws of this jurisdiction in substantially its original form. It was considered by this court in Bostwick v. Minneapolis & P. R. Co. supra, in connection with the very contention advanced by the defendant here. In that case the court said: “In this state cattle are not free commoners. The common-law rule is in force, and every man is bound, at his peril, to keep his stock upon his own premises, and is liable for all damage-done by such stock upon the lands of another, whether fenced or unfenced. Comp. Laws, § 5569.” 2 N. D. 447.
It was considered in connection with the so-called “Herd Law” in Ely v. Rosholt, 11 N. D. 559, 93 N. W. 864; Johnson v. Rickford, 18 N. D. 268, 122 N. W. 386; and Corbett v. Great Northern R. Co. supra. In Ely v. Rosholt, 11 N. D. 559, 93 N. W. 864, the court said: “In this state the rule of the common law is declared by statute. That the owner of stock is liable in damages for trespasses by them (Rev. Codes 1899, § 6153; Bostwick v. Minneapolis & P. R. Co. 2 N. D. 440, 447, 51 N. W. 781), unless the trespass is committed between the 1st day of November and the 1st day of April (Rev. Codes, 1899, § 1549), and excepting in those counties where, by a majority vote of the electors, had pursuant to the provisions of §§ 1550-1552, Rev. Codes, the operation of the earlier statute has been annulled.” 11 N. D. 560.
In Corbett v. Great Northern R. Co. supra, the court quoted with approval the following language used by the supreme court of Oregon: “The rule [the common-law rule of liability of the owner of stock for damages resulting from trespass] was not founded on any arbitrary regulation of the common law, but was an incident to the right of property. It is a part of that principle which allows every man the right to enjoy his property free from molestation or interference by others; it is simply the recognition of a natural right. A person owning and occupying land is not vested with the right to enjoy it upon condition that he inclose it by a palisade strong enough to keep his neighbors and their stock from breaking into and destroying the fruits of his labors. Property is not held in civilized communities by so insecure a tenure;
The foregoing excerpts speak for themselves, and clearly indicate that this court has recognized that the owners of stock are liable for damages occasioned by their trespassing upon the premises of others, except in so far as the legislature has imposed certain conditions upon the right of the owner of lands to collect such damages.
It should also be noted that the subsequent changes in the so-called “Herd Law” have strengthened rather than weakened the views expressed in Bostwick v. Minneapolis & P. R. Co. and Corbett v. Great Northern R. Co. supra. Thus at the time Ely v. Rosholt, supra, was ■decided, our statute provided: “It shall be lawful for cattle, horses, mules, ponies and sheep to run at large from the 1st day of November until the 1st day of April of each year. . . . But nothing in this Code shall be construed to repeal any special act establishing a fence law for any county in this state.” Rev. Codes, 1899, § 1549. This section was also in force when Johnson v. Rickford, 18 N. D. 268, 122 N. W. 386, was decided, with the exception that the time in which animals might run at large had been changed so as to include the period between the 1st day of December and the 1st day of April of each year. See § 1933, Rev. Codes 1905. But in 1913 the section was amended so as to read as follows: “It shall be unlawful for cattle, horses, mules, swine, goats and sheep to run at large at any time except as hereinafter provided.” Laws, 1913, chap. 178; Comp. Laws, 1913, § 2617. At the same time subsequent sections of the “Herd Law” were also amended so as to provide for the establishment of stock districts in which stock might be permitted at large between certain dates, to be specified in the petition for the establishment of such stock district. See Laws 1913, chap. 178; Comp. Laws 1913, §§ 2618, 2622.
While § 8500, supra, standing alone may be susceptible of the
It is an elementary rule of construction that a statute must be construed as a whole. And the intention of the whole act will control the interpretation of the parts. Lewis’s Sutherland, Stat. Constr. 2d ed. §§ 368, 310.
Chapter 45 of the Code of Civil Procedure 1913 (of which § 8500 forms a part) expressly provides that the offending animals may be seized, and the claim for damages enforced against them. The provisions of the statute all look toward speedy action, which of course is essential in view of the expense incident to caring for the animals.
It follows that the judgment rendered in favor of the plaintiff, upon the verdict returned in this case, must be affirmed. It is so ordered.