Wood v. Davis

1. Strays, cmd Stray Law. Whether cattle whose owner is known to the taker-up can be taken up as strays, under the stray laws — qucere. 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” — qucere. . 2. Finding and Judgment; Lhddence Supporting. Where a case is tried by the district court without a jury, and a general finding made, and some positive testimony supporting every fact pecessary to sustain the finding, this court will not disturb the finding as against the evidence.

Error from Pottawatomie District Court. Replevin, brought by Wood, to recover the possession of 160 head of cattle taken up by Davis as strays. Trial, and judgment for defendant at the February Term 1873 of the district court, and Wood brings the case here on error. 1. The court below fell into the unaccountable error of supposing that because § 5, ch. 105, of the General Statutes 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 inclosure, 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 Die., 542; 2 Kent’s Com., 359; 1 Bouv. Inst., 196, par. 498; 1 Blackst. Com., 297; 2 id., 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. 2. The defendant did not sufficiently describe the cattle in the stray notices which he posted. The law (§ 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. 1. The animals taken up were unbroken, and taken up between the 1st day of November and the 1st day of April and were found upon the defendant’s premises. Within the meaning of § 1, eh. 105, Gen. Stat. 1868, no unbroken animal could lawfully wander 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 one 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. 27 Miss., 551; 20 111., 363; 2 B. Mon., 327. 2. The description is to be a “full” description, and was evidently intended to mean a general one; for § 11 provides another kind of description, which is denominated a “true description,” which the appraisers shall make, and which must be aoourate. The description was sufficient.