79 P. 459 | Idaho | 1905
Lead Opinion
This action was brought by the respondent as plaintiff in the probate court of Owyhee county, on December 8, 1902. From a judgment in favor of the plaintiff in that court an appeal was taken to the district court. On a trial in that court verdict and judgment were rendered and en
It is first contended that said law is unconstitutional, for the reason that it is in violation of the fourteenth amendment to the constitution of the United States, in that it denies to appellants the equal protection of the law and deprives them of their property without due process of law; that there is an implied license given by the-United States to all . owners of stock to graze them upon the public lands.
The constitutionality of .the provisions of said sections 1210 and 1211 has been passed upon by this court in Sifers v. Johnson, 7 Idaho, 798, 97 Am. St. Rep. 271, 65 Pac. 709, 54 L. R. A. 785, Sweet v. Ballentine, 8 Idaho, 431, 69 Pac. 995, Phipps v. Grover, 9 Idaho, 415, 75 Pac. 64, and Walling v. Bown, 9 Idaho, 184, 76 Pac. 318. In those cases it was held that the provisions of said sections were within the reasonable police powers of the state and not repugnant to the provisions of the fourteenth amendment of the federal constitution or to any of the provisions of the constitution of this state. In support of that contention appellants cite Buford v. Houtz, 133 U. S. 320, 10 Sup. Ct. Rep. 305, 33 L. ed: 320, which it is claimed holds that the implied license given by the United States to all classes of stock to graze upon the. public lands is a property right which the state cannot take away, and that such -license has been .extended to .stock of every description, and that the state cannot confine it. to a particular. class or within special limits. That case was - from the then-territory of Utah, and decided under the laws of that territory,
Tiedeman, in his work on State and Federal Control of Persons and Property, at page 838, says: “In every state the keeping of livestock is under police regulation.The clash of interest between stoekraising and farming calls for the interference of the state by the institution of police regulations; and whether the regulations shall subordinate the stockraising interest to that of farming, 'or vice versa, in the case of an ir
The views of this court on the constitutionality of said sections 1310 and 1311 are quite fully set forth in decisions of this court above cited, and we hereby affirm the views therein expressed. Under the provisions of said sections the penalty prescribed is the damage sustained by the injured party, and as to an element of damages this court said in Sweet v. Ballentine, 8 Idaho, 431, 69 Pac. 1002: “The giving of damages for the destruction of grasses on the public domain, by sheep within two miles of the dwelling of the settler, is not based upon the idea that the settler has a vested property right in such grasses. The settler is permitted, under the law, to recover such damages as a penalty against the petitioner because the latter has done that which the law forbids and makes unlawful. And said statute was not framed on the idea that the settler had a vested right in the grasses growing on the public domain, but on the theory that one who violated said law should pay as a penalty for his unlawful act all damages that a settler had sustained by reason of such violation.” And I think the actual damage sustained by the settler by reason of the destruction of the grasses within the two-mile limit is a proper element of damages in this class of cases.
It is contended that it is the duty of the farmer to fence against sheep, under the provision of section 1330, Kevised Statutes. Said section is as follows: “Any person having any inclosure in conformity with the provisions of chapter 1 of this title is deemed to possess a lawful inclosure, and if any horses, mules, jacks, jennies, cattle, hogs or sheep break into such in-elosure, the attorney or party injured has a lien upon such animals until he is recompensed for all damages committed by said animals; provided, that persons owning or occupying any lands which are inclosed by any watercourse or natural em
Chapter 1 of the title, as amended, provides what shall constitute a lawful fence, and it is obvious if a wire fence be so constructed as to constitute a lawful fence it would turn neither hogs nor sheep.
The question of contributory negligence on the part of the respondent is raised on the ground that he failed to post notices of the two-mile limit line around his residence. There is no merit in this contention. Another contention is that the damages awarded are excessive. There is a conflict in the evidence upon that point, the plaintiff estimating his damages from $200 to $500, and the respondent, Reynolds, estimated the damages at about $45. There being a substantial conflict in the evidence on this point, this court is not inclined to disturb the verdict and judgment. The judgment is affirmed with costs in favor of the respondent
Concurrence Opinion
Concurring. — I have heretofore, in Walling v. Bown, 9 Idaho, 184, 76 Pac. 318, expressed the opinion that the question as to the constitutionality of sections 1210 and 1211, Revised Statutes, is a subject no longer open to judicial consideration and determination in this state. In concluding that opinion I said: “The writer of this opinion is of the belief that, whatever might be our judgment now, we would be wholly unjustified in opening these questions for further consideration by this court.” I have in no respect changed my mind on this phase of the case since the Walling-Bown opinion was announced; and, indeed, I think the reasons even stronger now then they were then for applying the principles of stare decisis to the question there considered.
Upon the point that the damage allowed in this case is excessive, I have examined the evidence and find such a conflict as will prevent this court from disturbing the judgment. For the foregoing reasons I concur in affirming the judgment.
Dissenting Opinion
Dissenting. — For the reasons expressed in Sweet v. Ballentine, 8 Idaho, 431, 69 Pac. 995, I cannot eonenr in the conclusion reached by Mr. Justice Sullivan, and for the reasons expressed in Walling v. Bown, 9 Idaho, 184, 76 Pac. 318, I cannot concur in the concurring conclusion reached by Mr. Justice Ailshie.