165 P. 218 | Idaho | 1917
This case was commenced in the probate court of Washington county, upon a complaint charging the defendant with a violation of the provisions of sec. 6872, Rev. Codes. Upon the trial in said court the defendant was found guilty as charged in the complaint and an appeal was taken from the judgment to the district court for Washington county. Upon the trial in the district court the defendant was again found guilty and the court sentenced him to pay a fine of $25 and the costs of the action. The appeal herein is from said judgment of the district court.
The principal assignments of error relied upon by appellant, are:
First, that the court erred in refusing to give certain instructions which were requested by him;
Second, that the evidence is insufficient to justify the verdict; and,
The complaint alleges that the defendant herded, grazed and pastured, and permitted and suffered a band of sheep to be herded, grazed and pastured on the range in question, said range being then and there cattle range previously occupied by cattle, and range then and there usually occupied by cattle-growers, the said defendant having full knowledge of the character of said range.
It is stipulated by and between the parties that the tract of land or range mentioned in the complaint has ever since the year 1885 been used both as a cattle and sheep range in the usual and customary use of such range as a cattle or sheep range. The defendant was convicted of permitting and suffering sheep to be herded, grazed and pastured upon said range. The case was prosecuted under the provisions of sec. 6872, Rev. Codes, which reads as follows:
“ Any person owning or having charge of sheep, who herds, grazes, or pastures the same, or permits or suffers the same to be herded, grazed or pastured on any cattle range previously occupied by cattle, or upon any range usually occupied by any cattle grower, either as a spring, summer or winter range for his cattle, is guilty of a misdemeanor; but the priority of possessory right between cattle and sheep owners to any range, is determined by the priority in the usual and customary use of such range, either as a cattle or sheep range.”
There is evidence in the record to the effect that the range was first used for horses and cattle in 1874, and has been used continuously for horses and cattle ever since. The evidence shows that sheep came upon the range about 1885. There is evidence that since 1890 the defendant himself has ranged sheep upon the range in question. The stipulation is to the effect that ever since 1885 sheep have ranged upon it in the usual and customary use of it as a sheep range. No protest on the part of the cattlemen and no claim of exclusive right on their part is shown in the evidence up to within a few days prior to the commencement of this action.
“The jury are instructed that if you find from the evidence that continuously since the year 1885 the range or tract of land mentioned in the complaint has been jointly used both as a cattle and sheep range in the usual and customary use of such range, then you should take this fact into consideration upon the question as to whether or not such range had been abandoned as an exclusive cattle range.”
This and all other instructions on that question requested by the defendant were refused by the trial court. The trial court instructed the jury upon the question of abandonment, saying that the state must show that the range had not been abandoned as a cattle range, and that if the evidence proved that it had been abandoned as a cattle range, the verdict must be for the defendant. The trial court did not define in its instructions what is meant by the word “abandonment” as used in this action. In the case of State v. Omaechevviaria, 27 Ida. 797, 152 Pac. 280, this court apparently recognizes the defense of abandonment in this class of cases, saying in substance that the state must show that the range had not been abandoned as a cattle range. The defense of abandonment was not made in that ease, and therefore the court did not enter into a detailed discussion of that subject. The trial court in this case followed substantially the language used by the supreme court in State v. Omaechevviaria, supra. However, in the present ease the defense of abandonment was specifically raised by the defendant and the evidence produced makes it necessary to treat specifically of that question.
The statute says that “priority of possessory right . . . . is determined by the priority in the usual and .customary use of the range.” If the usual and customary use of the range has been for cattle, then it is cattle range. If the usual and customary use of the range has been for sheep, then it is not a cattle range. If the usual and customary use of such land has been by both cattle and sheep, then it is not a cattle range, but a cattle and sheep range. It is the contention of the state in this case that if the range is first used for cattle, then the
Counsel for respondent, in their brief, contend that to recognize the defense above mentioned would be tantamount to recognizing adverse possession as a defense and would be tantamount to holding that the sheepmen, by committing trespasses in the past, have acquired a license to commit crime. The defense of adverse possession as such does not apply, nor is it to be conceded for one moment that anyone can acquire the right to commit crime by reason of having committed it in the past. The point is that under this particular statute the question of whether a man is committing a crime by herding his sheep upon a certain range depends upon the character of that range. The character of the range, in turn, depends upon the past acts and attitude of cattlemen and sheepmen in regard to it. The act of the defendant himself, among others, may thus tend to prove the character of the range.
The question of abandonment is, in the first instance, a question of fact for the jury. In our judgment, however, the uncontradicted evidence and the stipulation as to a customary joint use from 1885 until May, 1916, without protest, establishes an abandonment of the range as a cattle range within the meaning of that term as used in the statute. We therefore conclude that the evidence is insufficient to support the verdict of guilty and the judgment of conviction based thereon.
So far as the constitutional questions raised in this case are concerned, they were passed upon by this court in State v. Horn, 27 Ida. 782, 152 Pac. 275, and State v. Omaechevviaria, supra. While the questions involved are close, this court does not see fit to overrule those decisions.
The judgment of conviction is reversed and the case is remanded to the trial court, with direction to take such future action as may appear proper in view of this decision.