McNeer v. Boone

Mr. Presiding Justice Boggs delivered the opinion of the Court. A demurrer was sustained to the declaration in this, an action on the case brought by McNeer against Boone. The correctness of the ruling of the Circuit Court in this respect is the only question here presented. ■ The declaration alleged that McHeer was the owner of a colt which was being pastured by James Smith. That Boone had possession of a pasture adjoining that of Smith, in which he (Boone) had a herd of cattle. That the pasture fields were divided by a “ good and sufficient fence,” and that Boone’s cattle broke down the fence, so that the colt passed through it into Boone’s pasture, and strayed to and fell into a well in that pasture, and was killed by reason of the failure of Boone to properly cover the mouth of the well. It is not averred that the fence was a partition fence either by agreement or under the statute. Construing the pleading most strongly against the pleader it is to be presumed that it was not a partition fence. It is consistent with the declaration that it may have been wholly the fence of the defendant. That being true, the plaintiff had no right to rely upon it as a means of securing the colt within Smith’s pasture. His duty was to keep the colt upon his own premises, and he had no legal reason to rely upon the sufficiency of the fence of another to restrain his colt, unless it was a partition fence, the defective portion of which had been assigned to such other person to maintain. McCormack v. Tate, 20 Ill. 331; McBride v. Lynn, 55 Ill. 411. It is urged that Boone was required to keep his cattle, within his own inclosure, and that he was, by the common law rule in force in Douglas county, answerable for the trespasses of his stock. True, but there is no averment that his cattle trespassed upon or damaged the property of the plaintiff. At most it only amounts to a charge that defendant’s cattle broke down the defendant’s fence, so that the colt of the plaintiff escaped from Smith’s pasture and was killed. If the fence did not belong to Smith or the plaintiff, and was not a partition fence, what reason has the plaintiff to complain that it was not maintained? The declaration fails to show that the plaintiff, or Smith, his representative, had any legal right to rely upon the fence as a means of keeping the colt in the pasture of Smith. Their duty was, under the common law rule, to keep the colt on their premises. When it escaped to the premises of the defendant it was a trespasser, and the defendant was under no obligation to keep the mouth of the well covered to secure its safety. The judgment must be and is affirmed.