delivered the opinion of the Court—Baldwin, J., concurring.

This is an action to recover the value of a horse killed by the cars upon the Sacramento railroad. The case was tried below without a jury—defendant had judgment and the plaintiff appealed.

It appears that the horse had been permitted to run at large upon the uninclosed commons. That at the time the cars were passing, the horse, in company with others, was about crossing the railroad track, upon a public road; becoming frightened, it ran along the track some hundred yards, where the road crossed an open culvert, there being a fence on each side of the track; that the horse failed in the attempt to leap this open culvert, and was run over and killed by the locomotive.

The Court below refused to permit plaintiff to prove that it was the custom in this State to permit domestic animals to roam at large upon the uninclosed commons; but held that, in so permitting his horse to roam at large, the plaintiff was guilty of negligence, and that he was not entitled to recover damages for a loss which was, in fact, occasioned by such negligence.

This was error. The rule of common law which required owners of cattle to keep them confined to their own close has never prevailed in California. Before the discovery of the gold mines this was exclusively a grazing country; its only wealth consisting in vast herds of cattle, which were pastured exclusively upon uninclosed lands. This custom continued to prevail after the acquisition of the country by the United States, and has been in various instances recognized by the Legislature.

The common law was adopted only so far as it was not repugnant *539 to the Constitution and statutes of the State! Now, the rule contended for by respondent, and adopted by the Court below, is repugnant to no less than three statutes passed by the session of the Legislature at which the common law was adopted, to wit: The law regulating rodeos; the Act concerning marks and brands, and the Act concerning lawful fences.

If it were contemplated by the Legislature that all such animals were to be confined to the close of the owner, where was the necessity of providing for a general herding of all the cattle of a neighborhood, after notice, in order that all might attend and each select his own ? Or of requiring cattle and horses to be branded before reaching a certain age ? Or the justice of providing that damages for loss of crops destroyed by cattle should only be recovered by those whose farms are inclosed by a certain description of fence ?

Judgment reversed and cause remanded.