Pacific Coast Law Journal.

VOL. 2.

OCTOBER 5, 1878.

No. 6.

Current Topics.

THE Convention to frame a new Constitution for this State is now fully organized. We will chronicle each week the important changes proposed by the members in respect to the judiciary.

DE LA GUERRA VS. NEWHALL, published in this number of the JOURNAL, is quite an important decision to the residents of those counties embraced in the Act of the Legislature, known as the Trespass Act.

WE call attention to the case of Ryan vs. C. P. R. R. Co., published in this issue. The question involved is a construction of the grant of lieu lands to the California and Oregon Railroad Company. The decision distinguishes Sanger vs. Newhall (2 Otto, 761) from the one at bar.

IN Meyer vs. Graeber, the Supreme Court of Kansas recently held, that when a note and mortgage are made at the same time and in relation to one subject they constitute one contract, and the interest is payable annually, unless the terms in the mortgage and note otherwise specify.

The phrase in a note "interest to become part of principal" simply means that the interest shall bear interest like the principal, and must never be construed to mean that the time for the payment of the interest is extended.

Supreme Court of California.

JULY TERM.

[No. 5,987.]

[Filed September 9, 1878.]

DE LA GUERRA, RESPONDENT, vs. NEWHALL, APPELLANT. TRESPASS-ACT OF FEBRUARY, 1874, CONSTRUED.-Where a party has availed himself of the Act of February, 1874, entitled "An Act to protect agriculture, etc.," by corraling portions of stock trespassing at different times on his lands, and the complaint shows that the trespass is a continuous one, he can not maintain an action for damages for trespass by other portions of said stock not restrained. He can not divide the actions. If he pursues the statute, he is barred from bringing an action at law, though he restrained and recovered damages for only a portion of the stock trespassing.

Appeal from the First District Court, Ventura County. The complaint alleges that the defendants drove and permitted large bands of cattle belonging to them to come upon plaintiff's premises and eat and destroy large quantities of grass and feed, and has upon divers days, from May 5, 1877, and continuously since said day, allowed and permitted and caused said cattle to remain upon and destroy feed and grass to plaintiff's damage of $10,000.

Plaintiff further alleged that he has not availed himself of the provisions of the Act of the Legislature, entitled "An Act to protect agriculture, etc."

Defendants demurred on the grounds that the complaint did not state that the lands were used for agricultural purposes; and that it does not appear that the action was commenced within sixty days after the alleged trespass.

Demurrer overruled, and the defendants' answer denying specifically all the material allegations of the complaint, and allege that the plaintiff on and after May, 1877, did avail himself of the provisions of said act, and corraled large numbers of defendants' cattle, and did not furnish them food or water to defendants' damage of $10,000.

The defendants asked the court to instruct the jury, "that if the plaintiff did avail himself of the provisions of the Act of the Legislature, entitled 'An Act to protect agriculture, etc.,' and has in pursuance of said act corraled defendants' cattle for the purpose of recovering damages under said act, then the plaintiff can not recover."

The court modified the instruction by adding, "as to any damages occasioned by the trespass of the cattle so taken up, and for which they were taken up," and, as so modified, gave the same to the jury.

The jury rendered a general verdict in favor of plaintiff for the sum of $2,250. They returned a special verdict upon the issues submitted by the court to them, answering that plaintiff did avail himself of the provisions of the Act of the Legislature entitled, "An Act to protect agriculture, etc.," and that he did take up and corral a portion of defendants' cattle.

The plaintiff then asked the court for the entry of judgment on the general verdict. Defendants objected and moved for a judgment on the special verdict.

In the order overruling defendants' motion for judgment on the special verdict, the court said: "The evidence tended to prove a continuous trespass from the 6th of May to the 6th of June, 1877. It also tended to prove that upon two occasions a small number of these cattle were restrained under the provisions of the Act of February, 1874, known as the Trespass Law. The court particularly instructed the jury that if they found for plaintiff they could not embrace in their assessment any damages that were occasioned by the - cattle restrained, and for which they were restrained; but if they found that other cattle of defendants trespassed upon plaintiff's lands, the verdict should be for the damages done by the latter."

Defendants moved for a nonsuit, on the ground that plaintiff had availed himself of the provisions of the said act, which was overruled.

In the motion for a new trial, one specification of insufficency of evidence to support the verdict was, that the evi-'

dence showed that the plaintiff had availed himself of the Trespass Act, and he could not therefore bring an action for damages. To this the court below answered: "That the evidence showed that a large number of defendants' cattle had trespassed on plaintiff's lands; and that on two occasions during the period laid in the complaint, plaintiff impounded small bands of the defendants' cattle. Upon one occasion the defendants paid the damages claimed, and on the other, defendants did not take the cattle away or pay damages, and plaintiff released them.

"Upon these facts defendants claim that the plaintiff's action is gone. This claim certainly could not be allowed as to such of the cattle as may have trespassed subsequently to the impounding. And I am of the opinion that it could not be allowed as to any cattle not actually impounded. Whereas, in this case, a large number of cattle are scattered over a tract of land miles in extent, it can not be that a party is obliged to impound all or none. Can it be that because the injured party has impounded a few that he is debarred from proceeding against the owner as to other predatory bands, whether they remain on the premises or not?"

Hines & Brooks, and W. T. Williams and J. M. Seawell, of counsel for respondent.

Charles Fernald, attorney for appellant, and S. M. Wilson, of counsel.

PER CURIAM.

The eighth section of the Act of February 4, 1874, to protect agriculture and to prevent the trespassing of animals upon private property in certain counties (Stats. 1873-74, p. 50) provides that "the owner or occupant of any land or possessory claim, whether inclosed or not, independent of the foregoing provisions of this Act, and if he fail to avail himself thereof, may maintain an action, provided such action be commenced within sixty days," etc. The defendants allege that the plaintiff did avail himself of the provisions of said Act, respecting the alleged trespasses men

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tioned in the complaint, and took up large numbers of the cattle of the defendants, etc. The following special issues were submitted to the jury: "Did plaintiff avail himself of the provisions of an Act of the Legislature of this State, entitled an Act to protect agriculture, etc., passed February 4, 1874, at any time between the dates mentioned in the complaint-fifth day of May, and fifth day of July, 1877— with respect to the cattle of defendants; and did plaintiff take up and corral any of defendants' cattle on the lands described in complaint under provisions of said Act, between said dates?" and the jury returned thereupon the following verdict: Answer-"Yes." They also returned a general verdict for the plaintiff, and assessed his damages at $2,250.

The complaint alleges only one trespass, and there is nothing in the special verdict, nor in the record, from which it can be ascertained that the trespass, for which the cattle were taken up by the plaintiff (and it is not found how many were so taken up), was a distinct trespass; but from the record it is to be presumed that each trespass was a part of the one continuous trespass mentioned in the complaint. The party injured by such trespass is not authorized to divide it up into several causes of action, either with respect to the means by which the trespass was committed, or the time of its commission, so as to maintain separate actions or proceedings for such cause of action. No authorities need be cited in support of this proposition. Nor does the eighth section, or any other provision of the Act under consideration, contemplate a recovery of a part of the damages for the trespass, by proceeding under the Act, and another part of the damages for a portion of the same trespass, by means of an action at law.

Judgment and order reversed, and cause remanded for a new trial.