Keith v. Bradford

[39] The opinion of the court was delivered by Barrett, J., The avowry sets forth the impounding, and avers that “ within twenty-four hours thereafter the defendant gave legal notice of the said impounding.” Under a general demurrer it is claimed that this averment is insufficient, and that the manner in which the notice was given should have been stated. The statute prescribes that notice shall be given, either verbal or in writing. Under this avowry, upon issue made by a traverse of notice, the burden would rest on the defendant, of showing that notice had been given in one or the other of the prescribed modes ; and when proof should be offered, it could not be objected that there was no sufficient averment to entitle the evidence to be admitted. The alleged defect is not of the substance, but of the manner, and even if it were to be held as a defect of manner, such defect cannot be reached by general demurrer. We do not decide that it is a defect at all; but only that if it is, general demurrer will not reach it. The first plea is met by a special demurrer, assigning for cause that it concludes to the country. The plaintiffs claim that the plea constitutes a traverse of a material averment in the avowry. The avowry states that the defendant tools the cattle “ in a field and enclosure used and improved,” * * * “ the soil and freehold of tlffe defendant,” etc. The plea says the defendant “ did not find said cattle in any field of the defendant enclosed with a legal fence.” The plaintiff rests on the idea that-under this averment in the avowry the defendant would be obliged to prove that his field and enclosure was surrounded with a fence four and one-half feet high or its equivalent, or by a highway. We do not think the terms of the averment would require such proof. If there is defect in the avowry, in this averment, in not setting forth the kind of bounds by which the field was enclosed it should have been met by a special demurrer. It is not competent to make an issue, in the form of simple traverse concluding to the country^ by using terms that would require the other party to make different proof from what would^je required if the-traverse had been in the terms of the averment. The demurrer to this plea is well [40] taken. Under the second and fourth pleas, and the replications and rejoinders, ending in demurrer, the question raised is, whether, in order to entitle the defendant to impound, it was necessary that his field in this case should have been enclosed with a fence sueh as is described in section 1 of the chapter on fences. As between the defendant and Wm. Bradford it was their right to let their land remain without a división fence. If they were mutually satisfied to let the land of Wm. Bradford lie open and unoccupied, under the statute as it has existed since 1853, the defendant could not, for his own protection against the cattle of owners adjoining said Wm. Bradford’s land on other sides, be required to make a fence between his own land and the open and unoccupied land of said Wm. Bradford. If the plaintiff had desired to occupy his land adjoining said William’s open and unoccupied land, he must do it under the provisions of the statute as to fencing; and he incurs the peril of remedies accorded by the law to parties suffering damage by his default in this respect. In a recent case in Windsor county this view of the law was fully considered and adjudged in an action of trespass, upon facts almost identical with the present case. Hence the only open question now is, whether the suffering party may impound cattle in a case like the present. The statute, chapter 100, section 4, says, “ any person may impound any beast found in his enclosufe doing damage.” In order to constitute such enclosure, is it necessary that the fence should be such as is described in section 1, chapter 102, General Statutes? In 1853 the statute, prescribing the rights, duties and liabilities of land owners as to fences and occupation, changed the law requiring the land owner to fence himself in against his neighbor’s cattle, and required the owner of the cattle to fence them in against doing damage to his neighbor. And it contained a section repealing the 16th section of chapter 92 of the Compiled Statutes, which prohibited impounding by any person whose lot in which the cattle were found doing damage was not enclosed by the fence called- legal. The repeal of that section, in connection with and as part of the new act in 1853 on the subject of f^pces, leaving at the same time the statute as to the right to impound, chapter 100, section 4, [41] untouched, compels the conclusion that the legislature did not intend to require a compliance with said repealed section 16 of chapter 92 of the Compiled Statutes. I have in mind that in Hammond’s N. P, 151 it is said, that the law surrounds the land which a man owns with an imaginary fence, if no other exists, constituting his enclosure ; and it is very familiar that no fence is necessary in order to entitle to an action for trespass committed, declaring quare clausum fregit. We think, upon principle, and in entire consistency with the statutory laws in their history and provisions in this state, when a land owner has done upon and around his own land, by way of fence and improvement and occupancy, all that the law requires in order, under the same law, to cast the duty on others to keep their cattle off from his land, that such land, in the sense of the word as used in the statute giving the right to impound, is the enclosure of the owner. This being so, the case under the second and fourth pleas and the subsequent pleadings, entitles the defendant to impound the cattle. The avowry alleges that within twenty-four hours the defendant gave the plaintiff legal notice of .the impounding. The seventh plea does not deny and therefore admits this averment. That plea alleges that no notice was given of the appointment of appraisers or of the appraisal. The demurrer to this plea admits this. The appraisal, whatever it was, whether the proper damages only were embraced, or improper damages were fraudulently caused to be embraced, could not in any manner affect the plaintiff as was held in Harriman v. Fifield, 36 Vt. 341. It was also held in that case that such irregular or void appraisal “ would not prevent the impounder from lawfully detaining the animals regularly impounded for the legal charges and expenses until they were paid or tendered.” This is but announcing the legal and logical result of what was held in Moore v. Robbins, 7 Vt. 363, viz : that the provision in relation to appointing appraisers is only to ascertain the damages. If the person impounding waives any claim for damages, as he may, it is not necessary to have any appraisers appointed. The same was reasserted in Holden v. Torrey, 31 Vt. 690. It is quite clear that an omission to give notice of the appointment [42] of appraisers would preclude the party from claiming under the appraisal, and if, in addition, it was affected with fraud, and so, wholly void, it would be the same as if no appraisal had been made, ánd would leave the parties to stand upon the facts constituting the taking, impounding and detaining the cattle with notice only of the impounding. Under the avowry and the seventh plea they stand upon just those facts ; and that being so, under the authority of the cases cited we must hold that the defendant did not become a trespasser ah initio by failing to give notice of the appointment of appraisers, and by procuring fraudulently improper damages to be embraced in the appraisal. The averment in the plea, that the defendant refused to give up the cattle unless the plaintiff would pay the. amount of the appraisal and all costs, cannot avail the plaintiff, in the absence of any averment of a demand of the cattle accompanied with a tender of the legal charges and expenses of impounding and keeping them. These views cover the questions raised by the third, fifth and sixth pleas. Judgment is affirmed for the defendant with eosts, and the damages adjudged according to the stipulation on file, and charges and expenses of impounding and keeping to be ascertained by the clerk.