Merritt

The substance of the complaint in this action is that while plaintiffs were owners and in possession of about eight sections of land in Trinity county (not alleged to have been inclosed), “defendants’ cattle and horses ran and trespassed upon said lands, ate up, injured, and destroyed the grass, hay, and verdure being and growing thereon,” to the damage of plaintiff in the sum of one thousand dollars. It is not alleged that the trespass was instigated by defendants, nor that defendants had notice thereof.

A demurrer to the complaint, on the ground that it • does not state a cause of action, was sustained by the court; and, plaintiffs having declined to amend their complaint, judgment passed for the defendants.

Plaintiffs bring this appeal from the judgment on the judgment-roll, and contend that “ at common law the rule was that every man must, at his peril, keep his cattle on his own land; and if he fails he is liable for their trespass on the land of others, whether fenced or *185 unfenced”; citing 3 Blackstone’s Commentaries, 211; Cooley on Torts, 337; Pol. Code, sec. 4468.

In 1850 the legislature of this state enacted that “ the common law of England, so far as it is not…