Ryall v. Allen

HARALSON, J. Every man at common laAV ay as bound to keep his cattle Avitliin his OAvn enclosure, and failing, if they escaped and trespassed on the lands of [226] another, the owner was liable for the resulting damage. But, that rule does not prevail in this State. Under our estray statutes, he, who would seek protection against animals running at large, must enclose against them by lawful fence. Section 2115 of the Code provides, that if any stock trespass upon- lands enclosed (by lawful fence), or embraced in a district in which stock is by law prohibited from running at large, the owner of such stock must pay the damages, and for each trespass after the first, double damages. Each of the counts in the complaint is in trespass for damages to plaintiffs crops by defendant’s stock running at large, entering upon plaintiff® lands and destroying his crops growing thereon, and each avers that said lands so trespassed upon lie within Spring Hill stock district, in which it is unlawful for stock of any kind to nm at large. This, if true, sustains and was the adoption of the common laAv rule, under which, “Whoever permitted his cattle to go at large, off his premises, if they escaped or strayed on the premises of another, within the designated part or district, became liable for all damages done by. them.” — Joiner v. Winston, 68 Ala. 132. It is true, that section 2116 of the Code provides that “Upon complaint made before any justice of the precinct, he must immediately issue an order in Avriting to three disinterested householders of the neighborhood not related to either of the parties, reciting the complaint and directing them to examine the fence,” etc. This section has reference to enclosures by a lawful’ fence, and the remedy provided is not exclusiAW of any other remedy for stock trespassing upon lands of- one, other than the owner. This action is not. brought under the chapter of the Code relating to “Fences,” hut is for trespass by stock on lands “Embraced in a district in which such stock is by Jaw prohibited from running at large,” in which case “The owner of such stock must pay the damages.” — Code, § 2135. Nor is it brought under the provisions of the act of 1892-3, p. 492, “To prevent stock from running at large in certain parts of Marengo county.” That act provides no remedy except- by empouncling and selling the stock under prescribed conditions. [227] The complaint in this case is a substantial copy, mutatis mutandis, of the complaint in the case of Joiner o. Winston, supra; and from what has been said, it will appear that the demurrer to- the complaint was properly overruled. The defendant filed seven pleas; the first was the general issue, and the others special pleas, each of which set up as a defense the matters wherein it was objected the complaint ivas insufficient. None of these pleas was good, but the demurrers thereto were general. The statute declares^ “No demurrer in pleading can be allowed but to matter of substance, which the party demurring specifies; and no objection can be taken or allowed which is not distinctly stated in the demurrer.” — Code, § 3303. The demurrers were, “That said pleas are no answer to the complaint;” 2nd, “That they present an immaterial issue.” The trial court should have overruled these general assignments of demurrer, and put the plaintiff to specific assignments, or failing that, to issue on the plea.- — Milligan v. Pollard, 112 Ala. 465, 466 ; Tranum v. Drum, 112 Ala. 277; Moore v. Meineke, 119 Ala. 634. Inasmuch, however, as it plainly appears that these pleas could not have been amended, so as to make them good pleas, the technical error of the court in sustaining-general assignments of demurrer to them, was without legal injury to the defendant. — 2 Mayfield’s Dig. pp. 176-178. When plaintiff was being examined as a witness in his own behalf, he was asked by his counsel, “What amount of cotton was destroyed by defendant’s stock? What was the value of your meííilotus destroyed by defendant’s stock?’.’ Both questions were objected to on the same ground, in substance, that they called for the opinion and conclusion of the witness, which objections were severally overruled. In this there was no- error. The questions called for facts, which, if within the knowledge of the witness, he Avas competent to answer. It was open to the jury under the evidence to find that the defendant voluntarily or knowingly permitted his stock to run at large and trespass on plaintiff’s land, as is averred in the two counts of the complaint; and that [228] their running at large and trespassing on plaintiff’s lands was not the result of mere negligence, and, therefore, trespass and not case was the proper remedy. — 4 Mayfield’s Dig. 953, § 23. The general charge for defendant Ava properly refused. Affirmed. McClellan, C. J., Doavdell and Denson, J.J., concurring.