212 P. 938 | Cal. Ct. App. | 1923
This is an action in replevin for the recovery of the possession of about 690 sheep, with damages for their wrongful taking and detention by the defendant. The complaint is in the usual form in such actions, alleging that on a certain date in January, 1921, the plaintiffs were the owners and entitled to the possession of said sheep and that thereafter, and while the said plaintiffs were so entitled to the same, the defendant wrongfully and without plaintiffs' consent came into the possession of said personal property, and still retains the same and refuses to deliver the same to the plaintiffs upon their demand, to their damage in the sum of $1,000. The value of the sheep so taken and so held is alleged to be the sum of $8,625, for which sum, together with such damages, plaintiffs pray alternative judgment in case the possession of said property cannot be obtained. The answer of the defendant consists of specific denials of the possession or right of possession of said sheep or any of them on the part of said plaintiffs; denies that their value is a sum in excess of $1,500; denies any wrongful taking or possession of the said property or the detention thereof to the plaintiffs' damage in any sum whatever. The defendant then proceeds to allege that on the date in January, 1921, alleged as the date of his wrongful taking of said property, he found said sheep trespassing and estrays upon certain real property then in his possession, and that he then and there took up and impounded said sheep under and by virtue of the estray laws of the state of California, and became and thereafter continued to be lawfully entitled to the custody and possession of the same for the satisfaction of his lien thereon thus acquired. The defendant also presented a counterclaim for damages in the sum of $400 for the trespass of said sheep upon his said lands, and also for the additional sum of $931.50, to which sum he alleged himself to be entitled for the impounding and custody of said sheep under the estray laws. To this counterclaim the plaintiffs filed an answer denying all of its averments and praying that the defendant take nothing thereby. The cause came before the court, sitting without a jury, for trial upon the issues thus framed, and upon the conclusion thereof the court made its findings of fact and conclusions of law. The findings of fact were brief and were in the following form: "The court finds that all of the allegations *377 in plaintiffs' complaint are true and sustained by the evidence. The court further finds that all the said sheep and lambs described in plaintiffs' complaint, at the time they were taken up by the defendant, were not estrays." As its conclusions of law from the foregoing findings of fact the trial court found that the plaintiffs were entitled to the possession of said sheep and to their costs, and entered its judgment accordingly. The court gave no alternative judgment, the sheep having been taken by the plaintiffs at the inception of the action under the provisions of the code relating to claim and delivery. The defendant's motion for a new trial was denied, whereupon he took and now prosecutes this appeal.
[1] The appellant's first contention is that the judgment must be reversed for the reason that the trial court had failed to find upon the material issues raised by the counterclaim. This contention is without merit for several sufficient reasons. The finding of the trial court that all of the allegations of the plaintiffs' complaint were true is sufficient in form to cover every issue of fact presented by its averments. (2 Hayne on New Trial and Appeal, Rev. ed. p. 1334.) It amounted, therefore, to a finding that the plaintiffs' possession of the property in question was rightful at the time of the defendant's taking of the same into his possession and that the defendant's taking possession and detention thereof were, and each of them was, therefore, wrongful. Being wrongful, such taking could not become the foundation for that portion of the defendant's counterclaim which is based upon the provisions of the estray laws, since it amounted, in effect, to a finding that the plaintiffs' sheep when so taken by the defendant were not estrays. [2] In so far as the defendant's counterclaim embraces a claim for damages for the trespass of the sheep upon the defendant's real estate, such counterclaim is not permissible in an action for replevin. (Glide v. Kayser,
The contention of the defendant that the additional finding of the trial court that the plaintiffs' sheep at the time of his taking them up were not "estrays" was merely a conclusion of law may or may not be true, but in any event it is immaterial since the general finding of the trial court that the defendant's taking of said property was wrongful *378 amounting necessarily to a finding that said property was not liable to such taking and impounding as "estrays."
[3] The appellant's next contention is that the finding of the trial court, whether express or implied, to the effect that the plaintiffs' sheep at the time of the defendant's taking and impounding of the same were not "estrays," and is not sustained by the evidence in the case. As to this contention the evidence in the case is conflicting in two main aspects. The first of these relates to the right of the defendant to the possession of the premises upon which he claims the plaintiffs' sheep were trespassing and taken and impounded by him. The lands in that region are pasturage and unfenced lands, adaptable in the main only to the grazing of cattle and particularly of sheep. The defendant was not the owner of the lands to which he claims the right of possession, but based his claim of right thereto upon a lease which he had received from the owner for the previous year and which had expired upon the last day of December of that year; and upon an alleged verbal renewal of said lease through the payment of a certain sum as rental for the year 1921 to a relative of the owner of the land. He failed, however, to show any right in such person to either receive such rental or extend such lease, while, on the other hand, the owner of the land took the stand to testify that he had received no such rental and had authorized no such renewal of the lease, but on the contrary had leased the lands to a person other than the defendant for grazing purposes for the year 1921. From such conflicting evidence the trial court may well have found that the defendant was not entitled to the possession of the premises upon which he claims the plaintiffs' sheep were trespassing, in which event the defendant would have no right to take up and impound said sheep under the estray laws. (Stats. 1915, p. 636.)
[4] The evidence is also conflicting as to whether at the time defendant took possession of the sheep they were "estrays" or were trespassing upon the premises claimed by the defendant. The evidence showed that up to a very short while before the defendant undertook to impound the sheep in question, they had been in the immediate custody of the plaintiffs' herder upon adjoining lands, to the possession of which the plaintiffs were entitled. The said herder, at the noon hour, had gone to his camp about a quarter of *379 a mile from where the sheep were feeding, but within sight of the same, to eat his noonday meal. While his vigilance was thus temporarily relaxed, some of the sheep crossed the invisible and unfenced boundary line between the lands of the plaintiffs and those claimed by the defendant, whereupon the defendant, who was watching the same through a spy-glass, sent two of his employees to take posession of and impound said sheep. While so doing and while as yet a portion of the sheep were still upon the plaintiffs' premises, the herder returned and objected to the taking, but was warned off by the defendant's employees with threats of violence. The entire band of sheep were then taken possession of and impounded by the defendant, who refused to deliver the same to the plaintiffs upon their demand without payment of damages and the statutory costs assessable upon the impounding of estrays. Plaintiffs thereupon commenced this action and took the sheep under claim and delivery. We are satisfied that upon this state of the evidence the trial court was justified in its finding to the effect that the said sheep at the time of their attempted impounding by the defendant were not "estrays" within the meaning of the act of 1915, under the provisions of which the defendant claimed the right to so impound said sheep.
[5] The term "estrays" at common law had the well-defined meaning of animals found wandering at large, whose ownership was unknown. (Bouvier's Law Dictionary, Rawles, 3d Rev., title "Estrays"; Lyman v. Gepson, 18 Pick. (Mass.) 422; Walters v.Glatz, 29 Iowa, 439; Kinney v. Roe, 70 Iowa, 509 [30 N.W. 776]; Hardy v. Nye,
Judgment affirmed.
Tyler, P. J., concurred.