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Lawson v. Hoke9/9/2005
importantly, those courts took that view even in the absence of any legislative directive to do so.
Perhaps the closest examples to our present case are the livestock fencing cases. In agrarian states, it was common for domesticated animals to wander onto property other than that of their owner and to do damage there. From at least early in the nineteenth century, legislatures addressed the problem. For example, in Indiana (the state whose constitution is the source of Article I, section 10), the legislature enacted a statute respecting enclosures, trespassing animals, and partition fences. See Myers v. Dodd, 9 Ind 290 (1857). The first section of the statute required that a partition fence, to be lawful, be such as a good husbandman would keep. Id. at 290-91. The second section provided that, "if any domestic animal break into an enclosure, the person injured thereby shall recover the amount of damage done, if it shall appear that the fence through which the animal broke was lawful; but not otherwise." Id. at 291 (paraphrasing statute). The Indiana Supreme Court held that such an exercise of the legislative power in denying a remedy was lawful. Id.
As early as 1870 -- only 11 years after statehood -- Oregon enacted a fence law similar to that of Indiana's. Section 1 of that statute set standards for the adequacy of fences for "all fields and inclosures." Miscellaneous Laws of Oregon, ch XV, title I, ยง 1 (1870), p 579 (Deady & Lane 1843-1872). Section 4 of the statute provided, in part:
"If any horse, cattle or stock, break into any enclosures, the fence being of the height and sufficiency aforesaid; * * * the owner of such animal shall * * * make reparation to the party injured [on a scale of reparation based on whether the trespass was a first trespass, or a repeated one]."
Id. Four years later, in Campbell v. Bridwell, 5 Or 311 (1874), this court sustained the statute's abrogation of the common law. Campbell was a case alleging trespass by cattle, but the plaintiff in that case did not allege that the plaintiff's land was fenced in compliance with the statute. This court held that, in light of the statute, the absence of that allegation was fatal to the complaint. Id. at 312-13. Accord, Bileu v. Paisley, 18 Or 47, 52, 21 P 934 (1889); see also Oliver v. Hutchinson, 41 Or 443, 69 P 1024 (1902) (citing Campbell, holding Oregon's statutory abrogation of common law more extensive than Indiana statute cited in Myers).
We note that, in the livestock fencing cases, as in the other classes of cases that we have reviewed, a party was disqualified from obtaining a remedy on account of the party's violation of law, without regard to whether the violation had any causal relationship (beyond "but-for" causation) to the party's alleged injury. The livestock fencing cases are particularly noteworthy because they are cases in which the legislature affirmatively directed that, when the statute was violated, there would be no remedy.
We think that the foregoing examples are illustrative of a common theme: Early in our nation's (and our state's) history, a plaintiff who would not have suffered the injury complained of had he or she obeyed the law could be denied the right to recover damages for his or her injuries. In light of that common theme, and in the absence of any case law or other authority to the contrary that is more persuasive, we conclude that no "absolute common-law right" that existed when the Oregon Constitution was drafted in 1857 would have guaranteed plaintiff a remedy for her injuries -- either economic or non-economic -- under the circumstances of this case. Thus, even if this case were otherwise wholly analogous to Smothers, plainti
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