Bowles v. Prentice

NORTONI, J. — This is a suit for damages accrued to plaintiff because of defendant’s cattle trespassing upon bis preñases. Plaintiff recovered and defendant prosecutes tbe appeal. It appears that tbe stock law — that is, section 772, Revised Statutes 1909 — restraining animals from running at large, is in force in Lewis county, and tbe suit proceeds thereunder. Plaintiff and defendant own and reside upon adjoining farms in Lewis.county. Tbe two places are separated by tbe Little Fabius river— that is to say, tbe plaintiff’s farm, consisting of forty acres, lies east and north of tbe Little Fabius river, while tbe farm of defendant is on tbe opposite side of tbe stream. It is said tbe river marks tbe line be-, tween them. Tbe evidence is, that no division or partition fence is maintained by tbe parties between their farms, and, indeed, no such fence was ever established or maintained. Moreover, tbe parties do not adjoin [562] fences at any point. Touching' this matter, the evidence is: “Q. , On direct examination I believe you said that Mr. Prentice’s- fence does not adjoin you anywhere? A. It does not. ’ ’ As before said, the Little Fabius river marks the line between the two farms, and plaintiff maintained no fence whatever, but defendant maintained a wire fence on his- side of the river, upon Ms own land. It appears defendant’s cattle, at pasture within his inclosure on the opposite side of the river, escaped therefrom by some means and trespassed upon plaintiff’s fields so as' to destroy his corn and other crops.- It is argued the court erred in submitting the case to the jury for the reason that the stock law applies to outside fences only and is without influence in those cas-es where-it appears the cattle escaped from a neighboring field under a common outside inelosure through a division fence, and came upon the land of an adjoining proprietor. The case of Jackson v. Fulton, 87 Mo. App. 228, is relied upon, but it is obviously not in point. There, the two adjoining landowners occupied each his own land under a common outside inclosure with no established partition fence between them. But here there appears to be no common outside inclosure for the two farms, and, indeed, the evidence is direct and positive that the fences of the two proprietors - do not adjoin at all. anywhere. Also it appears that there' is no division or partition fence between them. The Little F'abius river marked the dividing line between'the premises of plaintiff and defendant and plaintiff maintained no fence at all, either on Ms own account or in connection with defendant. . That the stock law statute supersedes the inclosure statute in counties where it is adopted and that its effect is to permit one to allow Ms fields to go uh-fenced and yet recover damages occasioned by stock running at large and entering thereon, is not ques [563] tioned. [See Jackson v. Fulton, 87 Mo. App. 228, 241.] Plaintiff was not required to fence Ms field from the incursions of the stock of others and he omitted to do so. There is no question of a common inclosure for the two fields, neither is there one concerning a division fence in the case, and it appears that defendant’s cattle, which the stock law required him to keep impounded, escaped from his premises and entered upon those of plaintiff, to his damage. It does not appear from whence the cattle came upon the premises of plaintiff whether through defendant’s fence on his own land and across the creek or from some other quarter, and the case is clearly one falling within the protection of the statute dispensing with the obligation to fence against cattle running at large. The judgment should he affirmed. It is so ordered. Reynolds, P. J-, and Allen, J., concur.