Cooper v. Martin

The appellant brought an action of replevin against the defendant sheriff to recover certain cattle belonging to the appellant which had been seized under section 2, chapter 221, Laws of 1918, making it unlawful for cattle that are infested with the cattle fever tick to run at large, and providing for the eradication of the tick or ticks on such infested cattle and the recovery of the expense incident thereto. On the trial a conflict in the evidence arose, the plaintiff testifying that his cattle were kept in the pasture under a contractual arrangement with the owner of the pasture, and that at the time his cattle were seized that such cattle were not running at large, and that consequently there was no authority under the said act for the seizure of his cattle by the sheriff. The witness for the sheriff testified that the cattle were running at large and were infested with the fever tick, and that, for the purpose of keeping the cattle from depredating upon the property of a citizen, one of the witnesses, he placed the cattle in his pasture, but that the plaintiff appellant had no contract for the keeping of cattle in said pasture; that when the cattle were impounded in the pasture the tick eradication authorities were notified of their condition, and that said cattle were inspected and ordered to be dipped in the dipping vats at stated intervals; that the cattle were so dipped, and, after being dipped in accordance with the directions of the proper authorities, they were kept in the pasture for the purpose of keeping them from depredating on the crops; that the sheriff seized said cattle for the expense incident thereto under the terms of section 2, chapter 221, Laws of 1918. This section reads as follows:

"Should any cattle, horses or mules, which are carrying the cattle fever tick (margaropus annulatus) upon their bodies be found running at large upon the open range, commons or unfenced lands, it shall be the duty of any inspector commissioned by the live stock sanitary board or any citizen of the county to notify the owner or person having control of such animals; and such notice shall consist of either personal notice to such owner or person, or by one publication in a newspaper published in the county having general circulation therein or by posting notice in three public places in the county, one of which shall be at the county courthouse, and if such animals are not removed within five days after such notification, publication or posting said notice, from the open range, commons or unfenced lands to notify the county sheriff forthwith that such tick infested animals are running at large, upon the open range, commons or unfenced place, and it shall be the duty of the inspector to dip or cause such animals to be dipped and thereafter be placed in an enclosure and dipped in accordance with the regulations of the live stock sanitary board, and during such period as such animals are so confined, they shall be in the custody of the county sheriff, who may collect reasonable fees for the feed, care and handling of such animals, and any expenses so incurred in handling, dipping, confining or feeding or pasturing of such animals shall be a lien against them to be paid by the owner or owners of such animals before the same are released by the sheriff and if such animals which have been so taken up and placed in the custody of the sheriff are not identified and claimed by the owner within a period of thirty days, such animals may be sold by the sheriff as provided by statutory law for estray animals."

The verdict below was for the sheriff, and we think the verdict is supported by the evidence. Appellant contends that there was no authority to seize the cattle because they were not running at large at the time of the seizure and that the statute requires five days' notice before proceedings are authorized by public authorities.

We think the facts disclosed by this record that the cattle were running at large within the meaning of the statute. It is true one of the citizens of the community had placed them in his pasture for the purpose of protecting his crops, the pasture being within a stock law district, but, as the defendant had no contractual rights, so far as he was concerned the cattle were running at large. The owner of the pasture would not be compelled to turn the cattle out on the range for five days before proceeding. The statute must be given a reasonable construction with a view to make it serve the purpose for which it was enacted, and, so construing the statute, the judgment of the court below must be affirmed.

Affirmed.