KIGHTS AND LIABILITIES OF TAKER-UP OF ESTKAY. 117 



The possession that must be kept of an estray is the same 

 that a prudent man is accustomed to take of his own animals, 

 and is not relinquished by letting the animal run upon a range 

 with cattle of like kind belonging to the taker-up.^^ 



As a general rule the statutes with regard to the adver- 

 tisement and sale of estrays must be strictly complied with.^^ 

 Such statutes are constitutional ;^* and one who has not given 

 the notice they require cannot acquire property in the estray 

 by possession or lapse of time/^ though in Texas it has been 

 held that one may become the owner by continued and ex- 

 clusive control over the estray, though he has not complied 

 with the statute.^" Where one took up an estray which he 

 kept in possession for a year without proceeding under the 

 statute hc' was held to be a trespasser ab initio and unable to 

 recover possession of the animal from one into whose pos- 

 session it had come again as an estray.^'' But where one has 

 attempted in good faith to comply with the estray law, though 

 he has not done so, he may maintain an action against a 

 wrongdoer for an injury to the estray.^* Where there is no 

 authority whatever for taking up an estray, the principle that 

 mere non-feasance will not make a trespasser ab initio does 

 not apply, and a demand is not necessary to enable the owner 

 to sue for conversion.^* 



249, — whether or not he has compHed with the statute. And see Thomp- 

 son V. State, 37 Tex. Cr. 654. 



" Parker v. Evans, 23 Mo. 67. 



"Chaffee v. Harrington, 60 Vt. 718; Harryman v. Titus, 3 Mo. 302; 

 Crook V. Peebly, 8 id. 344; Duncan v. Starr, 9 Lea (Tenn.) 238; McCros- 

 sin V. Davis, 100 Ala. 631. 



The proceeding to sell an estray is a special proceeding, not an action: 

 In re Rafferty, 14 N. Y. App. Div. 55. 



" Stewart v. Hunter, 16 Oreg. 62. " Hyde v. Pryor, 13 111. 64. 



'° Moore v. State, 8 Tex. App. 496, citing Blackburn v. State, 44 Tex. 

 463- 



" Bayless v. Lefaivre, 37 Mo. 119. 



'* Chic. & N. R. Co. V. Shultz, 55 111. 421. See Hawkins v. State (Tex. 

 Cr.), 20 S. W. Rep. 830, for evidence of possession held insufficient. 



" Ray V. Davison, 24 Mo. 280. That it must be proved that the estray 

 has broken through a lawful fence, see Storms v. White, 23 Mo. App. 31. 



