Schmudlach v. Danner

Eschweiler, J. Sec. 1391, Stats., provides for the building of partition fences and also provides that “owners of lands who do not maintain and keep in repair lawful partition fences shall not be entitled to recover any damages whatever for trespasses by the animals of owners of any adjoining lands with whom partition fences might have been maintained if such lands had been inclosed.” The jury found, and there can be no dispute under the testimony, that there was not a proper statutory partition fence between these two farms. The obligation rested on the plaintiff, if he desired to recover damages for the straying of defendant’s cattle from the adjoining farm upon plaintiff’s own farm, to see to it that a proper partition fence was [517] built and maintained. It is therefore entirely immaterial whether or not the proceedings of the fence viewers were taken according to the statute or not. Whether the blame for the failure to have the entire fence completed should be placed upon plaintiff • or defendant, or both, is immaterial under the plain reading of the statute. There being no such fence at the time of the injury to plaintiff’s clover held, he is barred by the statute from recovering damages occasioned by the mere straying of the adjoining owner’s cattle upon his farm. The plaintiff, however, asserts that this statutory bar to the right to recover does not apply in the case of- a wilful, intentional trespass by the owner of the cattle driving them upon another’s land, and the defendant the contrary. The common-law absolute liability of the owner of such domestic cattle for damage done by his default in so caring for them that they stray from his lands to those of another .is still the law of this state except as modified by statute. Metropolitan C. Ins. Co. v. Clark, 145 Wis. 181, 183, 129 N. W. 1065. It is well recognized, however, that provisions in a fence statute such as we have here are intended to apply only to such trespasses as are occasioned by the natural propensity of the animals themselves and not to a positive, intentional act of the owner or keeper of such animals whereby the trespass is occasioned. As to such wilful trespasses the absolute liability of the common law making the owners of such cattle liable for consequent damage must be held to be still in force. Light v. U. S. 220 U. S. 523, 31 Sup. Ct. 485; Mower v. Olsen, 49 Utah, 373, 164 Pac. 482; Vanderford v. Wagner, 24 New Mex. 467, 174 Pac. 426; Frostenson v. Marshall, 25 New Mex. 215, 180 Pac. 287; Harrison v. Adamson, 76 Iowa, 337, 41 N. W. 34. There must, however, be more than a mere turning of cattle loose from the defendant’s own barnyard onto his own fields, though he has reasonable probability for believing [518] that if left to themselves they will wander from his into the field of his neighbor, in order to justify a finding of such wilful trespass as will support a recovery for the consequent damages, where, as here, there has not been maintained a lawful partition fence. The italicised portion of the charge to the jury quoted in the statement of facts therefore stated the rule too broadly. We have examined the record in this case and are satisfied that the evidence is not sufficient to sustain the finding that there was a wilful and intentional trespass by defendant in driving his cattle through the gap and upon the plaintiff’s clover field. For that reason we think the motion of the defendant for a directed verdict or the subsequent motion for judgment notwithstanding the verdict should have been granted, either of which would have resulted in a dismissal of the complaint upon the merits. We are satisfied that that' should now be done. By the Court. — Judgment reversed, and the cause remanded with directions to dismiss the complaint.