Opinion of the Court-Stockslager, J. of Riggs in case he organized a corporation was to execute and deliver to Dalliba or his heirs or assigns "one-third in stock fully paid as above, bonds, scrip debentures issued upon said property, and said stock, bonds, or other securities as above shall be issued to the president of some bank in the city of Chicago (to be named by the party of the first part), as trustee, said stock to be fully paid as above." The complaint shows that when said corporation was organized the stock above provided for was issued and placed in the hands of plaintiff Albert Antisdel as trustee for said Dalliba. With this showing by the complaint the question arises: What lien, if any, did plaintiff Dalliba have upon the property conveyed by him to Riggs as shown by the deed, which, by its own terms, is to be considered and construed with the contract? It is also shown by the complaint that at the time of the commencement of this action Dalliba was the owner of a one-third interest in the debt due. Plaintiff Young was the owner of a one-third interest, and plaintiff Cutbirth the remaining one-third. Counsel for appellant urges that plaintiff Dalliba has no lien of any kind upon the property that can be enforced in the manner attempted in this action, and under our code, if he had a lien, it is a personal one, and cannot be transferred; that Dalliba had secured himself with the thirtythree thousand four hundred shares of nonassessable stock, which was delivered to Antisdel, his trustee, as secretary, for the payment of the $60,000 provided for by the contract, and that he could have compelled frequent accounting and prevented waste. The contract says "that this shall not be construed to prevent said party of the second part from organizing a corporation and selling all of the property to which reference is herein made to said corporation, and receiving for same the entire capital stock of said corporation issued fully paid and nonassessable." If Dalliba had an equitable lien on all the property he sold to Riggs, did he forfeit his right to such lien by accepting the paid-up nonassessable stock? Courts will only construe contracts as they find them, and in this case we are called upon to construe the contract in connection with the quitclaim deed from Dalliba to Riggs. We are of the opinion Opinion of the Court-Sullivan, J., on Rehearing. that, if Dalliba had an equitable lien by virtue of his quitclaim deed to Riggs, he forfeited his right to recover thereon. When he accepted the stock paid up and nonassessable, he took his chances on the output of the mine. That he accepted the stock as his security for the payment of the $60,000 due him we think is a fair and reasonable construction of the contract. The contract and sale is a very common one in mining countries. Dalliba had a large tract of placer mining ground for sale. Riggs bought it, paying $90,000 cash and agreeing to pay $60,000 more when the gold was taken from the ground, over and above expenses. If the mines could not be worked profitably, Dalliba had his $90,000 and Riggs was taking the chances on the property earning the $90,000 already paid and the $60,000 due before there was anything for him. Dalliba was amply protected by the contract. If at any time there was mismanagement in the operation of the property, or dishonesty on the part of Riggs or his successors, a court of equity would aid him. We have reviewed the authorities cited by respondent, but cannot agree with the contention that plaintiffs have any lien excepting such as Dalliba secured by the stock in the hands of Antisdel. By his contract he accepted this as his security. (See Greenberg v. Rock Co., 107 Cal. 667, 40 Pac. 1053.) The demurrer should have been sustained. The judgment is reversed, and remanded to the trial court for further proceedings in harmony with this opinion. Costs to appellant. Quarles, C. J., and Sullivan, J., concur. ON REHEARING. (January 20, 1902.) SULLIVAN, J.-Upon a careful consideration of this case on rehearing, we conclude that the demurrer ought to have been overruled. An attempt was made to set up in the complaint an equitable lien, when the contract sued on clearly shows that the only lien the respondents have is upon the shares of stock deposited with Antisdel, trustee. The validity of the $75,000 trust deed or mortgage was put in issue by the Opinion of the Court-Sullivan, J., on Rehearing. pleadings, and the record shows that the trial court erred in holding that said security was fraudulent and void. The record shows that Dalliba knew of the contemplated execution, and knew of the execution thereof and of the execution of the $3,000 mortgage on the personal property, and did not object thereto. It also shows that said securities were executed for the purpose of raising funds for the improvement and development of said mining claims; that one Roundtree, a confidant or friend of Dalliba, endeavored to sell said securities, and failed to do so, and reported to the Thomases that the amount. was too large, and must be reduced to $50,000, which was done by indorsement of $25,000 on said $75,000 note and mortgage. Said Roundtree failed to make a sale thereof after said reduction, and thereafter Ella C. Thomas purchased the same for $37,000, and paid said sum to the officers of said company, and thereby became the owner thereof to the extent of $37,000. There is no conflict in the evidence upon that point. It is also shown that said money was expended upon said mining claims and in the payment of the corporation's debts. While there is some conflict in the testimony as to the value of the work done on the mining claims by the Thomases, we think the evidence of the plaintiffs upon that point is of such character as not to be of much weight. Under the contract set forth in the complaint the net profits arising from the working of the mines are required to be paid on the $60,000 of the purchase price remaining unpaid, and it is alleged in the complaint that large net profits have been realized to the extent of more than $40,000 in the operation of said mines, which allegation is denied by the answer. The evidence fails to show that any net profits have been made in operating said mines. It follows that the judgment must be reversed on the ground that respondents have no lien upon said mining claims, and the decree of foreclosure must be reversed. We are of the opinion that said trust deed or mortgage is a valid subsisting lien on said mining claims and property to the extent of $37,000, with interest thereon as provided therein. The cause is remanded for further proceedings in conformity with the views expressed in the original opinion herein as Argument for Respondent. modified by the views expressed herein. Costs of this appeal are awarded to appellants. Quarles, C. J., and Stockslager, J., concur. (June 21, 1901.)' SIFERS v. JOHNSON. [65 Pac. 709.] POLICE REGULATION-DOMESTIC ANIMALS.-A statute making it unlawful to herd or graze sheep within two miles of an inhabited dwelling, and making the owner of sheep so herded or grazed liable for damages to the injured party, is a valid exercise of the police power of the state, and not unconstitutional. (Syllabus by the court.) APPEAL from District Court, Blaine County. Guy C. Barnum, for Appellant, cites no authorities upon the point decided by the court. L. L. Sullivan, for Respondent. The main question in this case is as to whether the provisions of section 1210 of the Revised Statutes, are in conflict with the federal constitution or the laws of Congress. That is the question upon which both parties to this case desire the decision of this court. In the case at bar, a reasonable police regulation has been established for the protection of the rights of the farmers of the state and for the preservation of the peace and good order of society. It is stated by a leading lawwriter that about ninety per cent of the legislation of the United States is in regard to police regulations. It is stated in State v. Harrington, 68 Vt. 622, 35 Atl. 515, 34 L. R. A. 100, that the police power is not limited to the protection of health, morals and education, but comprehends all of those general laws and regulations necessary to secure the peace and good order of the people. In the exercise of its police power, a Opinion of the Court-Quarles, C. J. state may, absolutely or unconditionally, restrain any and all livestock from running at large; and this without any reasons or grounds other than that of expediency, as determined by their legislative will. (See Kimmish v. Ball, 129 U. S. 217, 9 Sup. Ct. Rep. 277, 32 L. ed. 695, and authorities cited on page 696; 1 Tiedeman on State and Federal Control of Persons and Property, 1.) QUARLES, C. J.-The plaintiff commenced this action in the justice's court of Soldier precinct, in Blaine county, to recover damages from the defendant by reason of trespass committed by sheep belonging to and under the control of the defendant upon the premises, and within two miles of the same. The plaintiff recovered judgment, and the defendant appealed to the district court; and upon a trial in the district court plaintiff recovered a verdict for $100 damages, upon which a judgment was entered in favor of the plaintiff and against the defendant for the sum of $100 and costs. Defendant then moved for a new trial, which being denied, he appealed from the order denying a new trial and from the judgment. It appears from the record that the respondent owns the lands upon which he resides and which he farms in fee simple; that he has his said lands inclosed, and, at the date of the trespass complained of, had growing crops thereon, same being inclosed with barbed-wire fences; that the sheep of appellant were herded and grazed immediately around the residence and farm of the respondent, and trespassed within his inclosures; that a few of the sheep died-some within the field of respondent, and some very near to his house-and were permitted by appellant to there remain. The damage done to respondent was estimated at from $100 to $250 by the witnesses, including that within his inclosure, and that to the pasturage without, but within two miles of his dwelling. The evidence also shows that appellant had five bands of sheep-about two thousand in each band-grazing within two miles of the dwelling of the respondent, and so destroyed the pasturage that cattle and horses could not exist there; that cows will not graze where sheep have been grazed the same season. The respondent ex |