Z. K. Wood v. John J. Davis

Z. K. Wood v. John J. Davis. January Term, 1874. T. Stock: Stray Law. Whether cattle whose owner is known to the taber-up can be taken up as strays, under the stray laws, quaere; and whether the word “stray” is not used in the statute in the sense of “wandering, roving,” and not in the sense of the common-law term of “estrays,” quaere. .2. Findings: Evidence Supporting: Supreme Court. Where a caséis tried by the district court without a jury, and a general finding made, and some positive testimony supporting every fact necessary to sustain the finding, this court will not disturb the finding as against the evidence. Error from Pottawatomie district court. 'The case is stated in the opinion. JR. S. Hick, for plaintiff in error. 'The court below fell into the unaccountable error of supposing that because section 5, e. 105, Gen. St., provides that “no person shall take up any unbroken animal *as a stray, between the first day of April and the first day of November, unless the same be found within his lawful inelosure, nor shall any person, at any time, take up any stray, unless it be found upon his premises,” that therefore •every animal found on the premises of anybody except its owner in 'the month of December must necessarily be a stray, and decided the •case against the plaintiff. Strays are animals that are lost, and no ■ one knows their owner. 1 Bouv. Law Diet. 542; 2 Kent. Comm. 359; 1 Bouv. Inst. 196, par. 498; 1 Bl. Comm. 297; 2 Bl. Comm. 14. The -cattle in controversy were not strays when defendant took them up. He knew whose they were, and took them up only because they annoyed him. The plaintiff and defendant both lived in the same neighborhood, where the cattle had been owned and kept for years. They lived but four miles apart, the same distance that the defendant drove the cattle, — to Vroman’s, — to have them kept, when he took them up, and before he advertised them; and it was admitted on the trial that they were not taken up or found within the defendant’s lawful inclosure. If a whole herd of one hundred and sixty head of cattle may lawfully be taken up and treated as strays under such circumstances as these, no farmer or stock-grower in the state can suffer his cattle to run at large a single day without incurring the liability of their being taken up by his neighbors, and posted as strays within sight of his dwelling. The defendant did not sufficiently describe the cattle in the stray notices which he posted. The law (section 8) requires the taker-up-of a stray immediately to advertise the same by posting up notices, containing “a full description of the stray.” This section of the stray law was not complied with by the defendant, and therefore he could not legally detain the cattle from the plaintiff, whether they were strays or not, nor recover the amount which the court below found in. his favor as the value of their possession. Case é Putnam, for defendant in error. The animals taken up were unbroken, and taken up between. the first day of November and the first day of April, *and were-found upon the defendant’s premises. Within the meaning of section l,c. 105, Gen. St. 1868, no unbroken animal could lawfullywander upon the premises of the defendant between the dates stated, and whenever it did so it was a trespasser, and as such liable to be taken, up; and it is perfectly immaterial whether the owner was known, or whether there was 1 or 160 head of such unbroken animals. The question is not whether the animal is an estray, as at common law, but, taking, into consideration our condition, and the intent of the legislature, was the animal, at the time, one liable to be taken up? The word “stray,” in the act, is not used in any limited or technical sense; it is intended in the general sense,— to wander; to rove at-large; to play free and unconfined, — as Webster has it. The owner-of estray animals, which have been lawfully taken up, must pay the-costs and expenses of keeping before he is entitled to have them. Kerr v. Laird, 27 Miss. 551; Mahler v. Holden, 20 111. 363; Garabrant v. Yaughn, 2 B. Mon. 327. The description is to be a “full”’description, and was evidently intended to mean a general one; for section 11 provides another kind of description, which is denominated a “true description,” which the appraisers shall make, and which must be accurate. The description, was sufficient. [MAJORITY — Brewer, J.] Brewer, J. Defendant took up certain cattle belonging to plaintiff, and posted them as strays. Plaintiff brought his action of replevin, and on the trial the district court found the value of defendant’s possession to be $64, and rendered judgment in his favor for that amount. Of this plaintiff complains, and for first ground of error says that the whole proceedings of defendant were void, because-he knew whose cattle they were when he took them up. He insists, that only cattle whose owner is unknown can be taken up under the stray law. We are inclined to doubt this construction, and to think that the word “stray” is used in the statute in the sense of wandering, — roving,—as defined by' Webster, and as *ordinarily understood, and not in the sense of the old common-law term, “estrays.” Still, it is unnecessary to determine this question, for the defendant swears positively that he did not know whose cattle they were when he took them up; and though the whole testimony would seem to indicate that, even if he did not know absolutely, he had a very strong and correct impression of the ownership, yet the finding of the court being general in his favor, and without any special finding of fact, and there being positive testimony as to his ignorance, this court cannot say that the district court did not decide the law in accordance with the plaintiff’s views, and the facts in accordance with the defendant’s testimony, nor set aside a finding based upon such positive testimony. Again, it is urged that the notices posted did not sufficiently describe the cattle. The notices are not produced, and the only testimony is that of two witnesses who testify from their recollection of the contents. Of course, this testimony is not very full nor positive, yet as the defendant proceeded immediately after taking up the cattle to prepare and post notices, attempting at least to comply with the statute, we do not feel warranted upon such imperfect testimony in setting aside the finding of the district court, and declaring the defendant’s possession illegal and tortious. The statute calls for a “full description.” We cannot say from the record that the description was not “full” enough to give general and correct information as to the property taken up. The judgment of the district court is affirmed. (All the justices concurring.)