Broadwell v. Wilcox

Cole, J. Fences : common inclosure. The fifth count in the petition alleged that “plaintiff’s farm being inclosed, in common with lands rented and had in charge by the defendant, said ° d 7 defendant did willfully allow his sheep to run in said inclosure, to the damage of the plaintiff’s crops,” etc. The defendant filed, and the justice sustained, a motion for a more specific statement; and, in response thereto, the plaintiff added: “ the land referred to was [569] not, in tbe opinion of plaintiff, inclosed by a lawful fence.” The defendant demurred to tbis count, because it did not state facts sufficient to constitute a cause of action ; for that, it K admits tbe land was not fenced on which tbe trespass was committed.” Tbis demurrer was overruled, and excepted to, and is tbe alleged error complained of. Tbe fair construction of tbe language of tbe petition is, that tbe defendant intentionally put bis sheep in tbe common inclosure. The precise words are: “ did willfully allow bis sheep to run in said inclosure;” that is, did, by design, with set purpose, allow, etc. (See "Webster’s Diet.) Such being tbe fair construction of tbe pleading, tbe nature or quality of tbe fence surrounding tbe common in closure becomes immaterial; and tbe averment that it was not a “ lawful fence ” does not negative tbe cause of action. As between tbe parties having tbe common inclosure, of course no averment or proof as to a lawful dmision fence is necessary, in order to a recovery in such a case as that made by tbe fifth count. Tbe appellant’s counsel insist -that the count demurred to is, in effect, an ordinary claim for trespass by tbe stock of one upon tbe inclosure of another; "and hence tbe showing of a want of lawful fence defeats the claim. Whether tbe same rules, as to trespass by animals, would apply to tbe owners of lands in a common inclosure, as between one such owner and a third person, we need not, and do not, determine, for tbe very plain reason that the pleadings do not present such a question. Lawson v. Campbell, 4 G. Greene, 413; Herold v. Myers, 20 Iowa, 378. There was no error in rendering final judgment for plaintiff, such matter being within the discretion of tbe District Court in such cases. Dev., §§ 3944, 3945. Tbe case of Garvin v. Wells (8 Iowa, 216) is very different from tbis. Affirmed.