McCoy v. . Tillman

*205 WiNBORNE, J. Upon all tbe evidence in the record on this appeal taken in the light most favorable to plaintiff, this is the basic question for decision: Did R. M. Wood have the right to impound the plaintiff’s hogs? If he did, the judgment below is correct. If he did not, there is error in refusing to let the case go to the jury upon proper issues. In this connection it is pertinent to review the appropriate stock law effective in this State. It is provided that it is a misdemeanor for any person to allow his livestock to run at large within the limits of any county, township, or district in which a stock law prevails pursuant to law. G. S., 68-23, formerly C. S., 1849. It is also provided that “any person may take up any livestock running at large within any township or district wherein the stock law shall be in force and impound the same,” and that “such impounder may demand fifty cents for each animal so taken up, and twenty-five cents for each animal for each day such stock is kept impounded, and may retain the same . . . until all legal charges for impounding said stock and for damages caused by the same are paid, the damages to be ascertained by two disinterested freeholders to be selected by the owner and impounder . . . and their decision to be final.” G. S., 68-24, formerly C. S., 1850. It is further provided that “if any person shall impound any animal and shall fail to supply to same during such confinement a sufficient quantity of good and wholesome food and furnish water he shall be guilty of a misdemeanor,” G. S., 68-28, formerly O. S., 1854, and provision is made for collecting of the owner of the animal “the reasonable cost of such food and water.” G. S., 68-29, formerly O. S., 1855. Moreover, it is provided that “if the owner of such stock be known by the impounder he shall immediately inform the owner where his stock is impounded, and if the owner shall for two days after such notice willfully refuse or neglect to redeem his stock, then the impounder, after ten days 'written notice” posted as indicated and iñ form required, “shall sell the stock at public auction, and apply the proceeds in accordance with the provisions of this article, and the balance he shall turn over to the owner if known . . .” G. S., 68-25, formerly O. S., 1851. And in this connection, the statute pertaining to fences prescribes what is a lawful fence in Craven County, G. S., 68-2, formerly C. S., 1828. And the general'statute as to division fences provides that “where two or more persons have lands adjoining, which are either cultivated or used as a pasture for stock, the respective owners of each piece' of land shall make and maintain one-half of the fence upon the dividing line.” G. S., 68-6, formerly C. S., 1832. And it is further provided by statute that “if any person who is liable to build or keep up a part of any division fence fails at any time to do so, the owner of the adjoining land, after notice, may build or repair *206 the whole, and recover of the delinquent one-half of the cost before any court having jurisdiction.” G-. S., 68-7, formerly O. S., 1833. Furthermore, the authorities dealing with the subject generally hold that where adjoining landowners have apportioned to each a part of the division fence to be kept in repair by him, each is liable for trespass on the lands of the other committed by his livestock through defects resulting from his failure to perform the duty assumed. Conversely, if he fail to keep his part of the fence in repair, and as a result the livestock of the other landowner trespasses upon his land, he may not recover from the other damages therefor. See 2 Amer. Jur., 776, Animals; sec. 112, 3 C. J". S., 1296, Animals, 186 (b), and cases cited. Applying these statutes and principles to the evidence in the ease in hand, and conceding as plaintiff’s evidence tends to show that R. M. Wood, the adjoining landowner, neglected to maintain that part of the fence which he had agreed to keep in repair, and that as a result plaintiff’s hogs got out of his pasture and trespassed upon Wood’s corn field, Wood may not recover of plaintiff damage resulting from such trespass. However, plaintiff was under the statutory duty of restraining his stock from running at large. G. S., 68-23, formerly C. S., 1849. When the hogs were out of his pasture they were at large in so far as he was concerned, and subject to be taken up by “any person” and impounded. G. S., 68-24, formerly C. S., 1850. And even though they may have been at large as result of negligence of his neighbor Wood, as plaintiff’s evidence tends to show, the plaintiff had knowledge of it, and elected not to repair the fence sufficiently to restrain his hogs from running at large, and as a matter of law he is not relieved of his statutory duty in that respect. Compare Gardner v. Black, 217 N. C., 573, 9 S. E. (2d), 10. Manifestly, therefore, independent of his relation to plaintiff as an adjoining landowner, and irrespective of lack of legal right to claim damages for the trespass of the hogs, R. M. Wood had the right under the provisions of the statute, G. S., 68-24, formerly C. S., 1850, to take up the hogs of plaintiff running at large in stock law territory and to impound same. And the evidence tends to show that the amount demanded of plaintiff by R. M. Wood is not greater than the cost of impounding allowed by statute, G. S., 68-24, formerly O. S., 1850, and for which the hogs were sold. Therefore, the sale to defendant was in accordance with law, and the judgment below is Affirmed.