Cowles v. Balzer

By the Court, Welles, J.

It is quite obvious that the defendant, in distraining the cattle of the plaintiff, and in his subsequent proceedings thereon, did not intend and did not in fact proceed under or in accordance with the provisions of title 11 of chapter 8 of part 3 of the Revised Statutes, entitled “Of distraining cattle and other chattels doing damage, and of distraining in other cases.” (2 B. S. 517. 2 N. T. Stat. at Large, 534, do.) He undoubtedly intended and attempted to have his proceedings conform to the provisions of the act passed April 23, 1862, entitled “An act to prevent animals from running at large in public highways/5 {Laws of 1862, chap. 459, p. 844.) The first section of that act declares it to be unlawful for any cattle, horses, sheep, and swine to run at large in any highway in this state. The second section is as follows : “ § 2. It shall be lawful for

any person to seize and take into his custody and possession any animal which may be in any public highway, and opposite to any land owned or occupied by him, contrary to the foregoing section. And it shall be lawful for any person to take into his custody and possession any animal which may be trespassing upon premises owned or occupied by him.”

The ether sections of the act consist of directions for carrying out the provisions of the first two sections. The third section makes it the duty of the person taking the property into his possession to give immediate notice thereof to a justice of the peace or commissioner of highways of the town, whose duty it shall be to give notice of the sale of the property taken, in the manner therein provided.

. The notice to the justice of the peace given by the defendant, of the seizure of the plaintiff’s cattle, as required by the third section, was in writing. The defendant testified, “ the notice to the justice was not in writing. I merely saw him and told him so.” The plaintiff’s counsel contends that a mere verbal notice is insufficient, and that it should have been in writing. This notice is what gives the justice or commissioner jurisdiction to proceed and advertize and sell the property distrained, and I incline to think it should be in writing. It is not expressly required by the statute ; still I think the statute contemplates a written notice. It is not, however, necessary so to hold in this case, as there are other grounds upon which the case may be safely disposed of.

The object of the statute, as declared by its title, is to prevent animals from running at large in public highways. The first section affirms the title. It introduces an important provision in the law, in relation to cattle running at large in-highways. It takes away the power of town meetings to make rules and regulations for determining the times and manner in which cattle, horses and sheep should be permitted to go at large on highways, which power the towns had possessed for a great many years, and in numerous instances had exercised. In furtherance of the object thus declared, and with a view to give effect and practical operation to the first section, it is made lawful, by the second section, for any .person to seize and to take into his custody any animal which may be in any public highway, and opposite to any land owned and occupied by him. Thus far, section two provides ' for taking the cattle only'while in the highway and opposite to the land occupied by the person taking them. If they have passed from the highway, into and upon the adjoining field and premises of such person, and are there trespassing upon his possesion, the first branch of the section does not reach the case, or authorize a seizure. Hence the remaining clause of the section was introduced, which gives the right to seize the cattle while so trespassing upon him after having passed from the highway.

The act nowhere provides for the payment of any damages which may have been sustained by the occupant or owner of the land, by reason of any trespass of the cattle upon his land. Section three points out the duty of the person seizing cattle under section two, and of the justice or commissioner to whom he is to give the notice.- Such justice or commissioner is to proceed and sell the animals so distrained, and from the proceeds of the sale to retain his own fees and charges, specifying them ; and he shall then pay the person making the distress as follows : For every horse seized and sold, one dollar ; for every cow or calf, or other cattle, fifty cents ; and for every sheep or swine, twenty-five cents, together with a reasonable compensation, to be estimated by the justice or commissioner, for the care and keeping of the animals from the time of the seizure to the sale. The balance of the moneys arising from the sale, if any, to be* paid to the owner of the cattle, if claimed within one year after sale, and if not so claimed within that time, to be paid to the supervisor of the town, for the use of the town.

The fourth section defines the rights of the owner of the cattle before the sale, and provides that he may' demand and be entitled to the possession of the animals seized, upon making the same payments, and making satisfactory proof of ownership. If such demand and proof shall'be made at least three days before the time appointed for the sale, the owner shall be entitled to the custody and possession of the cattle, upon paying one half of the several' sums above mentioned, together with the whole amount awarded to the person making the distress, for the care and keeping of the cattle.

The fifth section provides for the care of animals running at large, or trespassing, by the willful act of a person other than the owner, to effect that object.

The sixth and last section merely repeals all inconsistent acts.

. bio reason can be imagined, as it seems to me, for introducing into this law a provision in relation to distress of cattle damage feasant, when the Revised Statutes had made ample provision for such cases.

It can not be that the legislature intended, by the act of 1862, to repeal those provisions ; for then there would be no authority, any where, for having the damages done by the cattle adjusted and paid before the owner of the cattle could reclaim the possession of them, bio change of that magnitude was contemplated.

There is not one word in the act on the subject of paying the person seizing cattle under any of its provisions, for damages done by the cattle upon his land. After the first section, the act is punitory in its provisions, intended to carry into effect the principle or rule declared in the first section.

In the case before us, the cattle in question were pasturing in the field of the plaintiff, their owner, and escaped from there into an adjoining field of the defendant, and were there seized by the latter, and detained by him until taken by the sheriff upon the papers and process in this action. It does not appear that the cattle in question were ever in any highway. I am, therefore, decidedly of the opinion that the taking of the cattle by the defendant was not justified by the act of 1862, under which the defendant’s proceedings were had. The defendant’s remedy, if he had any, was either by an action of trespass, or by distress damage feasant, under the title of the Revised Statutes before referred to, the proceedings under which are essentially different from those provided in the act of 1862.

[Monroe General Term, March 4, 1867.

There is another ground which seems to me equally fatal to the defendant. The referee finds that the cattle in question escaped from the plaintiff’s field into the adjoining field of the defendant, through the defective portion of the division fence, which the defendant was bound to keep in repair. This part of the finding the defendant’s counsel claims is not warranted by the evidence. Without protracting this opinion by discussing the evidence, which I have carefully examined, I think there was evidence on the subject, sufficient to sustain the finding of the referee. It is well settled, upon authority, that where two persons own lands adjoining, and there is a division fence between them, one portion of which one of the parties is bound to repair, and the other portion the other party is bound in like manner to keep in repair, and the cattle of one of them escape from his field, through the division fence, into the field of the other, by reason of the defect or insufficiency of that portion of the division fence which the latter is bound to keep in repair, he has no remedy; and if the cattle, while so upon his land, do him a damage, it is damnum absque injuria.

The two cases under examination are substantially alike, and the preceding remarks and considerations are equally applicable to both.

For the foregoing reasons, I think the judgment in each case should be affirmed. -

Ordered accordingly.

Welles, E. D. Smith and Johnson, Justices.]