The opinion
Strahan, J., concurring.
Thecomplaint in this action alleges, in substance, that the plaintiffs were the owners of and working certain mining grounds, and were the owners of and used two certain water ditches, in Crook county, Oregon, through which they carried water to their said mines; that one of these ditches was about four miles in length, by three feet wide and two feet deep, and the other one and a half miles long, and that the defendant kept, herded, and drove a certain band of sheep, which he owned and controlled, over and across said ditches, whereby they were damaged in the sum of $1,200. The answer, after denying the material allegations of the complaint, alleged as follows: That at all the times stated in the complaint said ditches were the property of one Tim Baldwin, and that they were situated on the unclaimed Government land of the United States; were uninclosed; but were situated upon the open public commons of the country. The new matter was put in issue by the reply. The trial resulted in a verdict and judgment for the plaintiffs for the sum of $60, from which judgment this appeal is taken.
1. The appellant’s counsel did not argue in this court the various exceptions taken during the progress of the trial to the ruling of the court in the admission or exclusion *56 of evidence. I do not feel called upon to notice or consider them, and they must be deemed abandoned.
2. At the conclusion of the plaintiff’s evidence the deiendant moved for a nonsuit, for the reason that the plaintiff had not proven a case sufficient to be submitted to a jury. .This motion was .overruled, and the action of the court thereon is assigned as error; but we are unable to say .whe^er it was error or not, for the reason the bill of exceptions does not purport to set out all the evidence before the jury when the motion was made. To present that question on appeal, the bill of exceptions must set out all of the evidence before the court when the motion was made. The bill of exceptions is silent on this ques-. tion, and that would preclude our considering it.
3. For'the like reason is the defendant’s request to the court to charge, in effect, that there was no evidence before the jury that the defendant drove the sheep into or upon the ditches. The bill of exceptions does not purport to contain all the evidence, and therefore, in accordance with the settled practice in this court, never to presume error, we must assume that the court rightly refused the instruction asked, for the reason that there was evidence on that subject.
4. The court, at the defendant’s request, instructed the' jury, among other things, as follows: “You cannot-find for the plaintiff in this case, unless you find from the evidence that the sheep were actually driven upon the ditch by the defendant, or some one in his employ. If the sheep were there by accident, or fed there themselves, without being actually and purposely driven there by the defendant or his employes, you should find for the defendant. Sheep have just as good a right to run upon the range as any other stock, and, if in doing so they do damage to the unfenced premises of another, they [the owner?] cannot be made to respond in damages. If you find from the evidence that the sheep in question strayed or went upon the ditch without being driven there by the defendant or his employes, you should find for the defendant.” These *57 instructions assume the defendant’s liability if he intentionally drove the sheep into the ditches, and before the jury could have returned a verdict against him they must have found that he did so. Of course, if he intentionally did any act'without authority of law by which he injured the plaintiff’s property, he would be liable in damages, whether it was by driving sheep into the ditches, and causing them to choke up with debris, or by obstructing the flow of water by any other means. This is not a case, therefore, where one negligently permits his stock to stray upon the premises of another, and do damages there, within the rule of the common law stated in 2 Black. Comm. *211. I do not, therefore, deem it necessary to consider or decide whether the common law on that subject is in force in this State or not, and that question, so far as I am concerned,' is expressly reserved for future consideration, when a case shall arise rendering its decision necessary.
I concur in the affirmance of the judgment, for the; reasons herein stated.