which he has the right of possession, or upon highways adjacent thereto, may take up the same and have a lien thereon for all expenses incurred and costs in keeping and caring for said animal or animals, as hereinafter provided; and no person shall remove them from the possession of the taker-up, or from the possession of the officer to whom they may have been delivered, except as hereinafter provided, however, in the counties of Trinity, Shasta, Del Norte, Siskiyou, Lassen and Modoc, any person finding at any time any estray domestic animal or animals upon his premises, or upon premises to which he has the right of possession, shall not have the right to take up said domestic animal or animals, nor shall he have a lien thereon for all or any of the expenses incurred and costs in keeping and caring for said animal or animals, unless said premises are entirely in. closed with a good and substantial fence. [Amendment approved May 20, 1915. Stats. 1915, p. 636,]

§ 2. Notice filed with recorder. Publication of notice. Any person taking up an estray animal or animals shall confine the same in a secure place, and within five (5) days file with the county recorder or county poundkeeper of the county in which such estray is found, a notice containing a description of the animal or animals taken up, with the marks and brands, if they have any, together with the probable value of each animal, and a statement of the place where the taker-up found, and where he has confined the same. The county recorder or county poundkeeper shall receive for filing said notice the sum of fifty cents. If the value of said animal or animals together exceed ten dollars, said notice must also be published in a paper of general circulation within the county at least once a week for three successive weeks, stating the time on which the animal or animals will be delivered to the constable, as provided in section 5 of this act, or if the finder knows the owner of said animal or the person having charge thereof, then, within five days after said animal is taken up, he shall notify the owner of said animal, or the person having charge thereof, which notice shall contain the same information as the notice to be recorded, and herein before provided, describing said animal so taken up, the date when it was taken up, the place where found, and the place where kept, and no charge shall be made for preparing and serving this notice. This notice shall be in lieu of recording a notice for which notice he shall be entitled to the sum of fifty cents. [Amendment approved May 20, 1915. Stats. 1915, p. 637.]

This section was also amended March 20, 1905. Stats. 1905, p. 395; March 6, 1907. Stats. 1907, p. 132, and April 22, 1909. Stats. 1909, p. 1079.

§ 3. Person claiming animal to pay. At any time within thirty days from the date of the filing of the notice specified in section 2 of this act, any person claiming such estray animal or animals shall appear and demand from the taker-up the possession thereof, and shall, at the same time, pay the taker-up all damages, expenses and costs incurred by reason of taking up such animal or animals, and upon receiving such damages, expenses and costs, the taker-up shall immediately deliver to the party claiming such animal or animals the possession thereof. Such damages, expenses and costs shall be estimated as follows, to wit:

1. The total amount paid by the taker-up to the county recorder, or county poundkeeper. A reasonable cost for publishing said notice, and a reasonable attorney's fee for preparing the said notice not to exceed two dollars and fifty cents.

2. The sum of not to exceed fifty cents per day for the keeping and care of each horse, mule, jenny, ass, cow, bull, ox, steer, or calf;

3. The sum of not to exceed fifteen cents per day for the keeping and care of each sheep, goat, hog, or other animal not hereinbefore specified; provided, that the taker-up of said animal or animals must properly feed and water the same while under his care; and if he fail so to do, shall forfeit all right of lien thereon. [Amendment approved May 20, 1915. Stats. 1915, p. 637.]

This section was also amended April 22, 1909. Stats. 1909, p. 1080. § 4. Action over damages. If the party claiming such estray animal or animals is dissatisfied with the amount charged by the taker-up for costs and expenses, he shall tender to the taker-up the proper amount therefor, and if the said tender be refused, the party elaiming such estray animal or animals shall within ten days thereafter commence, in the proper court, suit against the taker-up for the recovery of the possession of such estray animal or animals, in which said action the taker-up may set forth his expenses and costs, and said matter together with accruing expenses and costs to the time of the entry of the judgment, shall be determined by the court in accordance with the provisions of this act, and the amount of all such expenses and costs, and the costs of said action shall be included in any judgment awarded by said court, and such costs in said action shall be in favor of the plaintiff in said action and against said defendant, if the court shall find that the amount tendered by the plaintiff to the defendant was not less than the proper amount; otherwise said costs shall be in favor of the defendant and against the plaintiff. Without the consent of defendant in any such action, no return of such animal or animals shall be adjudged until the plaintiff shall pay to the defendant or deposit in court payable to him, the amount of all such expenses and costs in said action; and in case such payment or deposit be not made within ten days after the same shall have been determined by the court, or said action be not prosecuted with diligence, then the said action may be dismissed on motion of defendant without notice; in case of such dismissal, the defendant shall have judgment for his costs. In any such action for plaintiff to recover, it shall be incumbent on him to establish an existing right in himself to the possession of such animal or animals. [Amendment approved May 20, 1915. Stats. 1915, p. 638.]

§5. Sale of animals not claimed. If no person appears and claims the animal or animals taken up within thirty days after the filing of the notice herein before mentioned in section 3 of this act; or if a person does appear and claims the animal or animals taken up within thirty days after the filing of the notice above referred to, but shall fail to pay the taker-up the expenses and costs as provided in section 3 of this act, and shall fail to commence and prosecute with diligence an action for the recovery of the possession of such estray animal or animals within the time required by section 4 of this act; or if said action shall be dismissed; then the taker-up shall, in writing, notify

a constable or other officer of the township or county in which said animal or animals are held, which notice shall specify that he has complied with all the provisions of this act, and that a claimant of said animal or animals has failed to appear and claim the same as herein provided, or if he has appeared that he has failed to pay the expenses and costs and has failed to commence or prosecute with diligence an action for the recovery of the possession of such animal or animals within the time and in the manner provided for in this act, or that said action has been dismissed, and that such animal or animals are held by him subject to sale. Said constable, or officer, shall immediately proceed to sell such animal or animals at public sale, in conformity with the law concerning sales on execution, and shall be entitled to the same fees as are provided by law for sales under execution. [Amendment approved May 20, 1915. Stats. 1915, p. 638.]

§ 6. Disposition of money realized. Out of the money realized from the sale of estrays, the constable or other officer shall first retain his fees; he shall then pay to the taker-up his expenses and costs estimated as provided in section 3 of this act, or so much thereof as the funds in his hands will permit, and the surplus, if any, he shall pay to the county treasurer to be held by him for the owner of the estray or estrays for which it was received in payment. If any person or persons shall, within one year thereafter, prove to the satisfaction of the board of supervisors of the county in which the estray or estrays were sold, that he or they are entitled to the sum so held by the county treasurer, or any part thereof, the said board of supervisors shall order such sum to be paid over to the person or persons; and if not so proven within one year, then the same shall become a part of the common school fund of said county. [Amendment approved May 20, 1915. Stats. 1915, p. 639.]

§ 7. Title to animals sold. All sales made by any constable, or other officer, under the provisions of this act, shall convey a good and valid title to the purchaser, and the owner of the estray or estrays so sold shall thereafter be barred from all right to recover the same, except as provided in section 6. [Amendment approved May 20, 1915. Stats. 1915, p. 639.]

§ 8. Liability of taker-up. The taker-up of an estray animal or animals shall use reasonable care to preserve the same from injury, but if an estray animal or animals die or escape from the possession of the taker-up at any time while he is holding the same under the provisions of this act, the taker-up shall not be held liable in any manner on account of such animal or animals. [Amendment approved May 20, 1915. Stats. 1915, p. 639.]

§ 9. Cities not affected. Nothing in this act shall affect the laws or regulations in force or which may be in force regarding estrays, the poundkeeper, or other pound officer within the limits of any city or town where laws regarding estrays are in force. [Amendment approved May 20, 1915. Stats. 1915, p. 639. Added April 22, 1909. Stats. 1909, p. 1060.]

§ 9a. Township poundkeeper. Duty of. Powers of. [Added by Stats. 1909, p. 1060. Omitted by Stats. 1915, p. 636, when the entire act was amended.]

§ 10. Act not repealed. Nothing herein contained shall be held, deemed or construed to repeal an act, entitled "An act concerning lawful fences, and animals trespassing upon premises lawfully inclosed," passed March 30, 1850, nor to repeal an act, entitled "An act concerning lawful fences in the counties of San Bernardino, Colusa, Shasta, Tehama and Placer," approved April 18, 1859, in so far as the provisions of said acts, and each thereof, apply to or affect the counties of Trinity, Shasta, Del Norte, Siskiyou, Modoc and Lassen, but as to said counties, and each thereof, said acts are hereby expressly continued in force, it being hereby determined that the present conditions prevailing in said counties last named are such as to justify and demand the continued application of said statutes to said counties. The original § 10 read as follows: "All acts and parts of acts relating to estrays now in force are hereby repealed."

§ 11. Time of taking effect of statute. This act shall take effect from and after its passage.

Effect of the amendment of 1915 of this act on the Act of 1907, p. 999 (ante, Act 386): See Montezuma etc. Co. v. Simmerly, 181 Cal. 722, 189 Pac. 100.

ACT 388.

An act relating to estrays, providing for taking them up and giving a lien on them for damages, costs, and expenses incurred by reason of taking them up.

[Approved May 25, 1919. Stats. 1919, p. 1150.]

$1. Estray domestic animals may be taken up.

2. "Premises." Substantial fence defined.

$4. Election in supervisorial district to make act operative.
$5. Exceptions.

§6. Counties excepted.

$7. Constitutionality.

§1. Estray domestic animals may be taken up. Any person finding at any time any estray domestic animal or animals upon his premises, or upon premises to which he has the right of possession, may take up the same and have a lien thereon for all expenses incurred and costs in keeping and caring for said animal or animals, as hereinafter provided; and no person shall remove them from the possession of the taker-up, or from the possession of the officer to whom they may have been delivered, except as hereinafter provided.

§2. "Premises." Substantial fence defined. Whenever the term "premises" is used in this act, it shall be construed to mean land entirely inclosed with a good and substantial fence, and none of the provisions of this act shall apply to any unfenced lands. No wire fence shall be deemed a good and substantial fence within the meaning of this act unless the same has three tightly stretched barbed wires securely fastened to posts of reasonable strength, firmly set in the ground not more than one rod apart, one of which wires shall be at least four feet above the surface of the ground; provided, however, that any kind of wire or other fence of height, strength and capacity, equal to or greater than the wire fence herein described shall also be deemed a good and substantial fence within the meaning of this act.

§ 3. Enforcement of lien. Any such lien shall be enforced in the manner prescribed by the provisions of sections two to nine inclusive of the act entitled "An act relating to estrays, providing for taking them up and giving a lien on them for all damages, costs, and expenses incurred by reason of taking them up, and repealing all other acts and parts of acts now in force relating to estrays," approved March 23. 1901, as amended, which sections are incorporated herein and made a part hereof.

§ 4. Election in supervisorial district to make act operative. The provisions of this act shall not become operative or effective in any supervisorial district until, at a general election or at a special election called for that purpose by the board of supervisors, the electors of the district shall have declared by a majority vote in favor thereof. The form of the ballot shall be substantially as follows:

Shall the provisions of this act become

effective?

YES

NO

To vote for making effective the provisions of this act, electors shall stamp a cross in the square opposite the word "Yes" on the ballot. To vote against making effective the provisions of this act, electors shall stamp a cross in the square opposite the word "No." Such an election shall be conducted and the ballots cast thereat, counted, canvassed and returned as in the case of the election of a member of the county board of supervisors.

§ 5. Exceptions. Except in such districts as shall hereafter elect to accept the provisions of this act by the method set forth in section four hereof, none of the provisions of any act of this state relative to or affecting estrays shall be repealed, modified or effected hereby.

§ 6. Counties excepted. None of the provisions of the act shall apply to the counties of Del Norte, Lassen, Modoc, Shasta, Siskiyou or Trinity. § 7. Constitutionality. If any section, subsection, sentence, clause or phrase of this act is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this act. The legislature hereby declares that it would have passed this act, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more other sections, subsections, sentences, clauses or phrases be declared unconstitutional.

ACT 389.

An act providing for notice to the director of agriculture, of the proposed sale of estray, branded, bovine animals, providing a means for identifying estray animals, and declaring certain sales of such estrays null and void.

[Approved June 3, 1921. Stats. 1921, p. 1256. In effect August 2, 1921.] § 1. Notice to director of agriculture of sale of estrays.

§ 1. Notice to director of agriculture of sale of estrays. No branded, bovine animal shall be sold under the provisions of the estray laws of