ON REHEARING.
SULLIVAN, J.A rehearing of this case was granted, and after a reargument it is clear to the writer of this opinion that the defendant Walton had a lien on the hogs involved, for the damages done by them and for caring for them for a period of thirty days or more, leaving out of consideration any title to them acquired under the provisions of sec. 1282, Rev. Codes. It is also clear that the appellant had full notice of the defendant’s possession of said hogs and of the damage they had done him. The respondent tried to settle the matter with appellant, and negotiations extending over several days were carried on and arbitrators were finally appointed under the provisions of see. 1281, Rev. Codes. It was afterward ascertained that said arbitrators were not residents of the precinct in which said hogs were taken up and other arbitrators were appointed in their place, and the two appointed could not agree. The position taken by the manager of the Fall Creek Sheep Company in said arbitration was that the Fall Creek company owned the land on which said trespass was committed and that they would not pay anything whatever for the damages done, and that ended the efforts of the second attempt at arbitration.
Three trespassing hogs were taken up by the defendant on October 4, 1911. The ranch of the Fall Creek Sheep Company adjoined or was near the ranch of defendant. The appellant corporation had notice of the taking up of said three hogs, and instead of going and getting them, they turned loose thirty-six more hogs to trespass on the defendant, on or about October 15, 1911. And again on October 20, 1911, they turned loose on the defendant forty-six more hogs. They did this on the claim that the appellant was the owner or had the right to the possession of the land claimed by the defendant as a homestead.
*786The record discloses the following facts: That the. appellant turned loose a large number of hogs upon the farm of the respondent, knowing that they would eat up his grain and destroy his crops; that the appellant received actual notice that said hogs were doing damage to the defendant; that the defendant offered at one time to return the hogs without compensation if the appellant would only agree to restrain them until his crops were harvested; that the appellant declined to receive the-hogs, upon those terms, claiming that it had a right to turn its hogs loose on said land. The appellant refused to arbitrate the matter, denying that there was any trespass or damage done to respondent. Appellant refused to pay any damages on the ground that it had the right to turn its hogs on to respondent’s premises.
From all the facts of the case, it is clear that after defendant had taken said trespassing hogs up, he had a lien on them for the damages .they had done. The hog is an animal of peculiar disposition, tastes and habits. They are not permitted to run at large in this state, and if an owner turns his hogs loose to prey upon his neighbors’ property, he is liable in damages therefor.
The question of the amount of damages sustained by respondent was thoroughly gone into on the trial. In order to settle this matter, we have carefully gone over the evidence in regard to the amount of damages sustained by the defendant. After a careful examination of the evidence, we are satisfied that he has sustained damages in the sum of $600. This includes caring for the hogs for the time defendant had them in his possession. The defendant testified on the trial that he had offered to compromise at one time with the appellant for $663, but that a good part of said sum was for the worry the hogs had given him. The evidence further shows that the hogs were taken from him on replevin about two weeks after said offer to compromise.
We have concluded to modify and reduce the judgment to $600, and the cause is remanded, with instructions to the trial court to reduce said' judgment to the sum of $600 and to make findings and enter judgment in accordance with the *787views herein expressed. Said judgment shall be a lien upon said hogs.
Costs of this appeal are awarded to the respondent.
Stewart, J., concurs. AILSHIE, C. J.I am at a loss to know just what conclusion has been reached by the majority of the court in this case, and I apprehend that the trial court will experience similar difficulty. The judgment entered in the district court from which this appeal was prosecuted adjudges and decrees that the defendant, Thos. E. Walton, is the owner of the hogs described in the complaint over which this litigation arose, and that they be delivered to him, and that “in case a delivery cannot be had” he have a personal judgment against the plaintiff for “the sum of $995, the value thereof.” The judgment entered by the majority of the court on the original hearing was a straight affirmance of the judgment of the lower court. I dissented from that opinion and stated the reasons of my dissent, and still adhere to what I then said. A rehearing was subsequently granted, and the opinion of the majority of the court on rehearing concludes as follows: “We have concluded to modify and reduce the judgment to $600, and the cause is remanded, with instructions to the trial court to reduce said judgment to the sum of $600 and to make findings and enter judgment in accordance with the views herein expressed. Said judgment shall be a lien upon said hogs.” This would indicate that the majority of the court are now of the opinion that Walton, the respondent herein, did not acquire title to the hogs under the provisions of sec. 1282, Kev. Codes, for if they do so conclude, there would be no object in giving him a lien on his own property. On the other hand, they do not appear to reverse the judgment of the lower court which decrees that the respondent- is the owner of the property and entitled to the return thereof. The primary question presented to this court by the judgment of the trial court is whether the property in question belongs to the appellant or the respondent, and the incidental question growing out *788of the primary one is the value of the property. I adhere to the views expressed by me upon the original hearing of this case.
I am not unmindful of “the peculiar disposition, tastes and habits” of the hog, to which my associates refer, but whatever his tastes and habits may be, they of themselves are not sufficient to deprive the owner of the hog of his right of property therein. I take it that the “due process of law” provision of the fourteenth amendment is sufficient to protect the owner of a hog in his right of property therein, notwithstanding the “peculiar disposition, tastes and habits” of the hog. The man who took these hogs up and whose property was destroyed by them should be remunerated, and if it is to be determined, as I think it should, that these hogs belong to the appellant, then I agree that the respondent should have reasonable compensation for the damages he has sustained.