Legax and Political Development 

 that fact. ' It is only as the agricultural interests 

 have become predominant that the law with regard 

 to trespassing cattle has, by gradual statutory 

 amendment, been placed on a basis similar to that 

 in communities where agriculture was always an 

 important industry. 



Even with respect to the other branch of the 

 land owner's fundamental right — his right to sue 

 in a court of record for another's mere entry on 

 his land, though the entry be effected by mistake 

 and without actual damage — the law of California 

 has never been precisely like that of England, which 

 prevails in most of the States. It is true that, 

 theoretically, one may sue in a court of record for 

 a trespass on his land against another who enters 

 even without doing actual damage, and may recover 

 nominal damages. But nominal damages recovered 

 in a district or superior court in California never 

 have carried the right to costs in actions of tres- 

 pass, as was the case under the common law of 

 England. On the contrary, the party who is 

 awarded only nominal damages must pay the tres- 

 passer's costs of suit. Moreover, no general right 

 exists to have the appellate court reverse a case 

 where the jury refuses to give a verdict for the 

 plaintiff, who has only technically suffered an in- 

 fringement of his right. For a mere trespass, there- 

 fore, the land owner may justify his right only 

 at the expense of paying his own and his adver- 

 sary's costs, and even that slight satisfaction is 

 accorded him at the uncontrolled discretion of a 

 jury of his neighbors. He can not review a jury's 

 refusal to award such damages. The practical ab- 

 sence of legal remedy has a tendency to cause the 

 remedy of self-help to be invoked at the risk of 

 provoking quarrels and breaches of the public 

 peace. The rule as to costs has discouraged resort 

 to the courts for the redress of slight injuries not 

 only in respect to property but to personal rights, 

 such as assaults, slanders and the like. Its effect 

 is practically to remove from the domain of posi- 

 tive law a large and important class of rights. 

 This attitude of the law indicates the frontier in- 

 fluence, the spirit of the gold miner and the herds- 

 man, the willingness to sacrifice legal forms to 

 "rude justice." 



We may almost date the beginnings of legal his- 

 tory in the Pacific States from the coming of the 

 gold-seekers to California. Their incursion was so 

 sudden, their personalities so vigorous, that most of 

 the half-formed and primitive institutions of the 

 Mexican era were swept away. So far as concerns 



269 



