Clear Creek Lumber Co. v. Duncan

DOWDELL, J. It is the settled law in this state that, in the absence of a statute prohibiting the same, it is the right of every owner to permit his cattle and stock to run at large, and those who would avoid injury to their lands from the exercise of this right must inclose against them. — Pruitt v. Ellington. 59 Ala. 454; Hurd v. Lacy, 93 Ala. 428, 9 South. 378, 30 Am. St. Rep. 61; Rowe v. Baber, 93 Ala. 424, 8 South. 865; M. & O. R. R. Co. v. Williams, 53 Ala. 595; N. & C. R. R. Co. v. Peacock, 25 Ala. 229. The complaint contained only one count, to which a demurrer was interposed, and which was overruled by the court. It is not averred in the complaint that the plaintiff’s crop of corn, alleged to have been injured or destroyed by defendant’s stock or [435] cattle, was inclosed by a lawful fence; nor is it averred that the alleged trespass occurred in a stocklaw district, or where it was unlawful for stock to run at large. In chapter 51, p. 649, of the Code of 1896, after defining what constitutes a lawful fence, section 2118 of the chapter provides that, “if any trespass or damage is done by any animal breaking into lauds not inclosed by a lawful fence as defined in this chapter, the owner is not liable therefor,” etc. The complaint did not state a substantial cause of action, and was open to the fourth ground of demurrer. The court erred in overruling the demurrer, and for this error the judgment is reversed, and the cause remanded. Beversed and remanded. Tyson, C. J., and Anderson and McClellan, JJ., concur.