Ladue v. Branch

The opinion of the court was delivered by Wheeler, J. When the defendant found the plaintiff’s cow in his pasture doing damage there, he had a right to remove her from the pasture, doing no unnecessary damage to the plaintiff in that behalf; and the cow having come into the pasture through a defective fence that the plaintiff was bound to keep in repair, he had a right to impound the cow, and by proper proceedings could have perfected á lien upon her for the damage done by her on that occasion. He exercised his right to remove the cow, but did not stop there, nor did he undertake to impound her, but he caused her to be taken to his own premises, and claimed to keep her there until the damages done by her on that and previous oc [576] casions should be paid. This he had no right to do. The driving of the cow to his premises, and the detention of her there, was an unlawful taking and detention of her for which the action of replevin was well brought, and, upon the undisputed facts shown upon trial, was well maintained. The judgment of the county court is affirmed.