Montgomery v. Handy

Chalmers, J., delivered the opinion of the court. Plaintiff and defendant, and also one Ayers, made their several crops under one fence within a common inclosure. In the fall of the year, and before their crops were gathered, the defendant, Handy, without consultation with his neighbors, inclosed his own crop on three sides, leaving the fourth side to be completed by his immediate neighbor, Ayers, who already had a very insufficient fence between the land of himself and that of Ayers. Upon his own land Handy’s cattle were already located, and he permitted those of his brother also to be driven thereon. Both his own and his brother’s cattle readily passed over the insufficient fence into the land of Ayers, and thence, of course, into that of plaintiff, Montgomery, and greatly damaged her crop. Handy resists all liability, upon the ground that from the date of the erection of the fence by him a common inclosure did not exist between the parties within the meaning of § 984 of the Code of 1880, and that if this be not true, he, at least, is not liable for the injury done by his brother’s stock* since the section referred to makes only the owner of the stock responsible, which he, as to these cattle, was not. Neither position is sound, though the court, by its instructions, adopted both and virtually told the jury to find a verdict for the defendant, who accordingly had verdict and judgment. He who undertakes to segregate his own land, and to convert a [19] joint holding into a several one, must entirely complete the undertaking, and until he has done so by completely building his fence on all sides it remains a common inclosure. A lawful fence built on three sides only is no fence at all within the eyes of the law. In this case Handy would have been responsible to Ayers for all damage, save for a special agreement, inflicted by his stock, and equally so to the plaintiff, whose land, wholly unprotected, adjoined the latter. He was equally responsible for damage inflicted by the stock of his brother, which, by permission, had been mingled with his own. It is true that the statute speaks of the “owner”'only as being responsible, and it is true also that penal -statutes are to be strictly construed. But that the defendant was liable for the damage inflicted by all the stock voluntarily mingled with his own seems too plain for argument. If he was not, he would have been equally' acquitted for damage done by a hired animal, though the hiring was for the whole year, since in either case it might have been argued that he was not the “owner” of the animal. In either case he was the “ owner ” pro hao vic.e, and must be so treated. Reversed and remanded.