During the month of April, 1909, the plaintiff leased from one Henry Eberhard the N. W. % of seotipn 10, in Ash Creek township, in Stanley county, belonging to said Eberhard, and also the guarter section adjoining this -on the north, known as • the Leach land. The lease was verbal, but the consideration was paid in advance. .Plaintiff was to use the land for grazing or for cutting hay, or any -other use.to which he wished to put it. Eberhard reserved for himself a small piece of garden land, or “truck patch,” as he called it, but agreed with plaintiff, at the time -of making the lease, that he wo-uld fence his garden, and that, if plaintiff’s cattle -got into it, it- would not cost plaintiff anything. Plaintiff used the leased land for grazing purposes from the -time of making the lease until the 3rd day of July, 1909.
Early in the morning of July 3d Eberhard gathered 98 head of plaintiff’s cattle on or near the leased premises in section 10, and drove them to a corral, alleged -to be the to-wn pound, situsated on the S. E. % of section 33, in Ash Creek township, an-d owned and -occupied by the defendant. Plaintiff took up the trail of his stock shortly after Eberhard started with them, and followed -them -to defendant’s place, where he arrived very shortly after they had been- put into said corral, and demanded that they be released and -delivered' to him. This demand -was refused, and the cattle were retained by defendant for four days. Plaintiff brought this suit in claim and delivery, alleging in bis complaint, after a .particular description of -his stock, that they were wrongfully detained by the -defendant; -that -they were not properly fed or watered while in defendant’s possession; and that, because of their not having been properly fed and watered, the -cattle depreciated in value, to plaintiff’s damage, in the sum of $500. He prayed for the recovery of immediate possession of his stock -and his damage in the sum -of $500. He furnished' a -bond, and had the'stock returned to-him by the sheriff, ' •
The defendant, in bis answer, justified bis detention of plaintiff’s stock as follows: “For a -separate and specific defense, the *87•defendant alleges that -the cattle described in the complaint were placed in the Ash Creek township pound for the purpose of having them held there for damages done .to the growing crops, corn, grain, vegetables, and garden of Henry Eberhard, which damage was claimed by the said Henry Eberhard and which damage amounted to the sum' of $35, and the said cattle were kept in said pound for the purpose of satisfying said damages; "tbat said damages had not been paid at the time the cattle were taken by the writ of replevin out of the possession of the defendant; neither had the plaintiff offered to pay any of the said damages claimed by the said Hjenry Eberhard; that the said cattle were placed in the said pound on or .about the 3d day of July, A. D. 1909, and were kept in said pound ’by the said poundmaster, Wm. A. Sether, up to and including the 7th day of July, A. D. 1909, and the charges for keeping the said cattle-in said pound during said period at 25 cents a head is the sum of $98, and for taking into said pound 98 head of cattle at 20 cent a head is $19.60, the amount of hay fed to said cattle during said four days is six tons, at $5 a ton, or $30, making a total of $157,60, which sum of $157.60 was then due and owing to the poundmaster, Wm. A. 'Sether, of Ash Creek township, Stanley county, S. D., and which sum was demanded of the plaintiff prior to the commencement of ’this action, and at the time the cat-tie were taken by the' writ ■ of replevin -in this case; but the plaintiff refused and neglected to pay 'the said sum of $157.60 for the care and keeping of the said cattle in the pound of Ash Creek township, Stanley county, S. D. The plaintiff also neglected and failed and refused to pay t'he sum of $35. damages due to Henry Eberhard for the damages done to his vegetables, garden, and premises on section 9 and section 4, township 4, range 18 E. B. H. M., which damages were due and owing to the said Henry Eberhard, and the cattle described in the complaint had been, and were,- held for the satisfaction of said damages, expenses, and costs and-fees, as provided 'by law, all of which the plaintiff failed, refused, and neglected to pay before taking the cattle. Defendant further says that the plaintiff never -made any demand whatsoever upon this defendant in person for the possession of said cattle prior' to the commencement of this action; and that there now is due-»and owing to the defendant the sum of $192.60 for the taking and impounding, of *88the cattle described in the complaint, and for the keeping, for the feed furnished to them, and' for the damage done to Henry Eberhard’s premises as set forth herein,' all of which was due and owing by plaintiff to defendant as poundmaster at the time this action was commenced.” He 'also set up a counterclaim, in which he asked for the return of the cattle or $192.60 in case they could not be returned, and for the costs and disbursements of this action.
The case was tried to a jury. At the close of the trial, plaintiff and defendant each moved the court to direct a verdict in his favor. Plaintiff’s motion was denied, and the court directed the jury to return a verdict -in favor of defendant, which they did, fixing the value of the cattle at $2,940, and fixing the value of defendant’s lien thereon at $113.70, whereupon the court entered judgment, awarding the defendant possession of the cattle, the amount of the lien as fixed by the jury, and his costs and disbursements taxed at $243.55, amounting in all to the sum of $357.25. The court denied plaintiff’s motion for a new trial, and he brings the case here on appeal. The plaintiff saved exceptions to practically all the rulings of the court, and numerous errors are assigned upon these rulings. Consideration of such assignments as are necessary to arrive at a 'conclusion of the case will be taken up in their order.
[1] At the beginning of the trial and before the introduction of any evidence, the defendant gave notice that he would not make any claim for damages due Eberhard by reason of the trespass of plaintiff’s cattle, and moved to strike out all that portion of his answer pertaining to such damage. The plaintiff objected, which objection was overruled by the court, and this ruling is assigned as error. The objection was not well taken. The claim for damages, while not separately pleaded, constituted an independent cause of action, but it was in favor of Eberhard, who was not a party to the suit, and the same would have been stricken out by the court upon the motion or demurrer of the plaintiff. Evidence to prove the allegation of damage to Eberhard, except for the purpose of justifying defendant’s detention of the cattle, would not have been admissible in this case, even though the allegation had been allowed'to stand.
[2] The next assignment to be considered brings up the validity *89of the defendant’s appointment as poundmaster of Ask Creek township, the location of the town pound, and the right of E'berhard to-have the plaintiff’s stock impounded. The record of the proceedings of the town meeting and meeting of .the town board of supervisors held during the months of March and April preceding the alleged trespass were offered, and, over the objection of plaintiff’s counsel, admitted ;in evidence. Erom these proceedings it appears that one Martin Russell was elected as poundmaster, and .that the town pound <was located on the N. W. of section 34, in Ash Creek township. This was done by the electors of the township. Russell refused to qualify. This left a vacancy in the office of pound-master, and the board of supervisors, acting under authority of section 1045 '°f the Political Code, appointed the defendant to fill the vacancy. He immediately qualified, and became the duly appointed and legal poundmaster of the township. The board had power to fill this vacancy, and.his appointment was, therefore, legal.
[3] The board tof supervisors at the same meeting also undertook to' change the location of the pound, and locate it on the S. E. %. of section 33 of Ash Creek township. This last act the board was without authority to perform, and the town pound remained upon the N. W. % of section 34.
Section 1008 of the Political Code provides: “The. electors of each town have power, at their annual meeting: 1. To determine the number of pound masters and the location of pounds * * * (2) To select such town officers as are required to be chosen. * * * * * (5) To make all rules and regulations for impounding animals.” Section 1003 provides: “Each organized township iti the state of South Dakota is a body corporate, and has capacity * * * (4) To pass bylaws or ordinances for the government of such township and for the protection of the lives and property of its inhabitants, and to enforce the same in its corporate name before any justice of the peace in such township; and the process of procedure shall be the same as other actions before justices- of the peace, and to make such orders for the disposition, regulation or use of its corporate property as may be deemed by its board of supervisors to be conducive to tíre best interests of its own inhabitants.” It will be noted that, under section 1008, if is the electors who determine the number of poundma-sters and the location of *90pounds. In case, of a vacancy in any town.office the board of supervisors has the power, and it is made their duty, to fill the vacancy by appointment; but this, power does not extend to the determining of the number of poundmas-ters or the location -of pounds, nor to -the -making of rules arid regulations for the impounding of animals. This -power is reserved to the electors -themselves, and the board of supervisors had no -authority to locate a town pound, nor to change its' -location after it had been made by the -electors. This being the case, the -township pound having been located by the electors -on the N. W. % of section 34; in Ash Creek -town-, ship, it remained there until its locátion was changed by the electors of the township. From this i-t follows that there was no town pound on the S'. E. % of' section 33, and defendant’s possession and' restraint -of plaintiff’s cat-tie on the S-. E. Y\ o-f section 33 was wrongful from .the beginning. It may be contended -that it is immaterial to -the plaintiff where -his cattle were impounded, if the. distraint were lawful in the beginning, but this does not answer the question. The right of making this location, -or change of location, having been vested in the electors themselves, i-t is not within the province of the board of supervisors to say -that they can make as wi-se a selection as the electors or that one location is as' good as another. Furthermore', feed and water, or other means of properly caring 'for -and looking after the comfort of distrained stock, may be much -more available in one location than in another; and thus the location may become very material to- the o-wner of the distrained stock.
[4] The appellant contended that -he- was in no wise liable to the said Eberhard for -any damage that may have been -caused by his stock, -for the reason that the trespass took place on a piece of land'that he had leased from Eberhard; that, in the making of the lease, Eberhard agreed to protect his truck patch with a fence; and that, if plaintiff’s cattle -did d-o any damage, it should not cost the plaintiff a cent. That such- was the agreement was clearly proved -at the trial, and was not .disputed by Eberhard or the defendant. It may be that it wa-s -this very'-agreement on the part of Eberhard that induced plaintiff to make the contract and pay the rent for the .use -of this piece. of land; but, be .this as -it -may, -the risk of .damage -to-Eberhard’s' garden • patch was assumed by *91■himself, -and hence he became a trespasser when he proceeded to impound plaintiff’s cattle.
[5] But, even were this not the case, Eberhard, under his own testimony, had no, right to take possession of plaintiff’s stock. While, upon the stand he testified relative to where he got the cattle as follows: “When I got there (meaning his garden patch), ■the cattle had been there during the night, and destroyed everything in there. I saw the trail of these cattle, and followed them until I came onto them in the road, between sections 3 and 9. The cattle were about three-fourths of a mile from the land I leased ■to Mr. Callan.” In other words, the cattlé had been upon the premises, caused whatever damage there was, 'and' then had left the premises before Eberhard saw them, and he was obliged to follow their trail a distance of three-fourths of a mile before he found them. This he had no right to do under any circumstances The unvarying rule relative to distraining cattle for trespass since time immemorial is that they must be taken “damage feasant”; that is, they must be taken in the very act of doing the damage, and before they have left the premises upon which the damage is committed. 2 Cyc. 403; Harriman v. Fifield, 36 Vt. 341; Warring v. Cripps, 23 Wis. 460; Holden v. Torrey, 31 Vt. 690; McKeen v. Converse, 68 N. H. 173; 39 Atl. 435. The facts, as related by Eberhard himself, do not bring him within this rule; and, for that reason, his possession of said stock was wrongful from the beginning.
[6] But the weakness of respondent’s case goes back further than -any irregularities in the location of the township pound, or the manner .in which appellant’s cattle were impounded. Nowhere in this record is there .a suggestion that the board of supervisors of Ash Creek township had ever made any “rules or regulations for the impounding of animals,” or provided by bylaws or ordinances providing when or under what conditions animals of any kind might be impounded. By sub-division 4 of section 1003, Pol. Code, the town board' is empowered “to pass bylaws or ordinances for the government of such township and for the 'protection of the lives and property' of its inhabitants.” By subdivision 5 of section 1008 the electors ale required “to make all rules and regulations for impounding of animals.” ' And section 1027 provides the'necessary' steps for the enactment of or-' *92dinarices and by-laws. Thus it is necessary for the electors- and board t-o act before the office of poundmaster can be put in operation. Until the necessary steps have been taken by the electors and -the -board, the poundmaster was- without any rule of action whatever. There was no law on the subject for him to- enforce, and it was in-cumbent upon him to await-such action by the electors, and board before there was any official duty for him to per-' form.
[7] Counsel for respondent urges that: “Under -the' common' law, which is in force in this state on all subjects as to which there is no statutory legislation, Eberhard had the right to- distrain plaintiff’s -cattle and deliver them, to the poundkeeper for detention.” This proposition of law is correct; but it is not applicable to the1 case at bar, for the matter of distraining animals for trespass upon the lands -of -others than -their -owners has been the subject of statutory legislation since the very earliest .territorial days. It is also urged by respondent that the defendant, as poundkeeper, -had -the right to impound these cattle independently of -any -ordinance or regulation that might be passed by the electors of the' town-ship, and that the power enumerated -in section 1008, “to make all rules' and regulations for impounding of animals,” -confers no power on the -township -to create any right to impound; that it merely gives the power to regulate the manner of impounding. But the mere fact that they are empowered to make rules and -regulations for the impounding of animals carries with it -the implication that it' is necessary t-o make such rules and regulations, and that, until they are made, the poundmaster is without any guide as to- when or under what conditions trespassing stock is. to be impounded.
[8] 'Chapter 244 of the'Uaws of 1907 is relied upon by Eberhard as authority for -distraining cattle trespassing on his land. In this 'contention the respondent is 'correct. I-f -the facts' relied upon are such' as to bring liim within -the scope of -the provisions of this law then it would not only be' authority for distraining trespassing stock, -bult it would also furnish him with á -complete, arid, we' believe, his- -only remedy in the 'premises. Prior to thé -taking effect of this law, chapter 244, Raws of 1907, -the territory -comprising Stanley county wps a part of the range' country, and- known' as “Open Range.”' ' Cattle were allowed to' r-o-ami at will, ánd, unless they trespasséd upon premises inclosed' by a legal fénc'e, their own*93er was not. liable for damages -occasioned by their trespassing. The acts complained of by Eberhard in this case w-o-u^d have constituted no. cause of action in his favor against (the plaintiff; and, it was to afford a remedy for just such cases as this that.this law was enacted. It was especially framed to afford speedy and inexpensive relief. The person suffering the injury has but to notify -the -owner, or person having -charge of -the offending animals, of the damage and its probable amount. He may then, any time within 60 days, bring 'suit in -any court in the county, and, if he can- establish any damage, judgment will be entered therefor, -and no property belonging to the -owner of the offending animals, except -such as is by law made absolute, is exempt from execution and sale in satisfaction of such judgment. The law goes further, and permits the injured party, where he finds the stock trespassing upon ■his premises, to retcdn and keep in custody such offending animals, and gives (him a lien thereon for the amount -of his damage and the expenses incurred in detaining and caring for the -same. Prior to the taking of effect of this act, Stanley county being in the Open Range country, and, in- townships where the town boards had taken no action to put the pound law into operation there was no remedy in cases of this kind. This law provided a remedy in such cases.
[9] We might res-t the case here, but another proposition has ■been presented that will 'have to be determined by this court, sooner or later, and we will dispose of it now: Plaintiff, -in addition to alleging the wrongful detention of his cattle, pleaded special damage caused by such detention, and especially the manner in which they had been cared for. The evidence establishes the fact that the Cattle were taken between sections 3 and 9 on the n-onth'-side of the township, and driven to the S. E. J4 of section 33 on the south boundary of th$ township, a -distance of more than four miles by straight line. There they were inclosed in a corral — 98 of them— four rods wide by six rods long. It contained no mangers nor racks in which to feed .them, and the only means of supplying them with water was a trough, not to exceed 12 feet long and 10 to 12 inches in height and width. The weather was very hot. The feed given them was hay, the quality of which was differently described by different witnesses -as being every grade- between “old, black, ro.tten hay,” and “nice, bright, green hay.” ’ At -best, it was’ ordinary wild hay that had been cut during the summer of the pre*94vious year. Defendant testified that the cattle were given all they wanted to eat and drink, but the undisputed evidence showed that, when they were'released they were in a gaunt, half-starved condition, and famishing, for water, that two of them died from the effects of the confinement, and that plaintiff was materially damaged by- reason of defendant’s improper treatment of the cattle. But at the/close of the. trial the .court took from the consideration of the jury any damages claimed to have been inflicted on plaintiff’s cattle by reason of improper care while in defendant’s possession. This is assigned as error, and from the manner in which it is discussed iby counsel in their briefs it appears to have been done upon the theory that the plaintiff could not recover damages resulting from the mistreatment of his cattle in this action. In other word's, that this was a separate cause of action, not caused by the "wrongful taking of detention, and. that could not be j oined with a cause.of action based upon the wrongful taking or detention of personal property. This requires a construction of subdivision 6- of section 144, Code of Civil Procedure. . This section prescribes what causes of action may be joined in the same suit, and subdivision 6, reads' as follows: “Claims to recover personal property, with or without damages for the withholding thereof,” The court drew á distinction- between damages -occasioned to -the plaintiff by "reason of being deprived o.f the possession or use of his property and damages occasioned by injury to his property while-wrongfully in - the possession of the defendant. The first class would apply to -such property, and probably to such property only, as had some úsáble" value, while'the latter class would apply to any property, the value of whioh. had been allowed to deteriorate while in the wrongdoer’s possession, ei-thef by reason- of his maltreatment or lack ’of protection or care. " There may be -á" distinction between the two classes -of injury, but it is a fine one, and one more of construction' of the statute than of -real substance. It depends' upon whether the statute in question is to' be given a liberal construction or a strict' 'and narrow construction.' Possibly either construction 'can be applied'without doing 'violence to'the statute, but we do" not believe that it was the intention of the makers of the law that it should be so limited in it’s- scope as to require a panty who was compelled to bring' an action at law for the recovery of his own property to then bring another, and separate *95action to recover for damages occasioned by injury caused to his property by the wrongdoer. This appears to be the course pursued by the courts of other states in similar cases,, and it is supported by both reason and the weight of authority. 4 Cyc. 1564, citing cases from a large number -of states, where recovery of personal property and damages caused by the depreciation in the value of ■the property during its wrongful detention was allowed in the same action.
It follows that the judgment of the trial court must be reversed, and the case remanded for a new trial, in conformity with the views herein esgpressed.