229 S.W. 146 (Tenn. 1921), Folkner v. Whitehurst

Citation:229 S.W. 146, 144 Tenn. 62
Opinion Judge:McKINNEY, J.
Case Date:February 03, 1921
Court:Supreme Court of Tennessee

Page 146

229 S.W. 146 (Tenn. 1921)

144 Tenn. 62




Supreme Court of Tennessee.

February 3, 1921

Appeal from Chancery Court, Hamilton County; W. B. Garvin, Chancellor.

Bill by J. E. Folkner against C. F. Whitehurst and another. Decree overruling demurrer to bill, and defendants appeal. Affirmed.


The bill in this cause was filed for the purpose of enjoining and restraining the defendants Whitehurst and Hixon from permitting their stock to run at large upon the farms, premises, and crops of the complainant in Hamilton county. Whitehurst is a resident of Pennsylvania, but owns a farm adjoining that of the complainant in Hamilton county. Whitehurst is also the owner of the trespassing stock. Hixon, as superintendent, operates said farm for Whitehurst.

The bill charges that--

"By chapter 23 of the Acts of 1899, amended by chapter 114 of the Acts of 1901, it is the law everywhere within the limits of Hamilton county, Tenn., that stock shall not run at large; and it is made unlawful for any owner of any horses, cows, sheep, goats, or hogs, or any other live stock, knowingly to permit the same to run at large within the limits of said county; that any person violating this act is guilty of a misdemeanor, and, on conviction, is made subject to a fine of from $5 to $15, and is made liable for all damages done the property of others while any of such stock may be running at large within the county, and, in addition to such liability, the person damaged is given a lien on the animal doing the damage, and he may enforce the lien by attachment."

That, among other personal property owned by Whitehurst and on his farm, are a number of head of hogs, and these the defendants turn out to run at large, and knowingly and intentionally permit them to run at large, and in and upon the farm, premises, and property of the complainant and others, in violation of law and to complainant's injury and damage.

That defendants not only willfully turn out said stock, but knowingly and willfully permit them to run at large, and in and upon complainant's farm, fields, premises, and crops thereon, but they willfully disregard, violate, and set at naught said statute, and refuse to obey it. They know of the depredations of said stock upon the farm of complainant. They know of the damage and injuries done and being done to complainant, but they refuse to keep up said stock, and they persist in letting them run at large, and they refuse to obey said law; and they not only threaten, but they state their intention and purpose, to permit the continued running at large of said stock, and the continued injury and damage to complainant and others.

That the complainant sought to avoid the

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necessity of this suit by having the defendants to stop the violations of law, and to keep their stock from entering in and upon the property, but that they refuse, and they insist that they intend to continue their course of permitting the stock to run at large.

That money damages cannot and would not compensate complainant. Said stock not only have rooted up and are rooting up the land and crops, but are so injuring the lands as that new crops cannot this spring be planted, or, if planted, they will be so injured as that normal harvests, if any harvest at all, will not, and cannot, be realized from them; and such losses to complainant cannot be ascertained, declared, or allowed, or adequately compensated for, by any rule of law. Complainant's injuries and damages are irreparable, and will continue to be irreparable; and in addition to all this, even were the damages not irreparable, it would necessitate a multiplicity of suits to enforce the same; that complainant's only full, adequate, and complete remedy is an appeal to this court for an injunction to stop the further continuance of the wrongs.

That the General Assembly of 1919 passed an act, the same being chapter 651 of the Private Acts of that session, entitled:

'An act to fix, define and establish a lawful fence in counties of this state having a population of not less than 70,000 nor more than 90,000 inhabitants, according to the federal census of 1910 or any subsequent federal census, except within the corporate limits of sites of counties falling within the provisions of this act."

The body of the act provides, without more, that certain kinds of fence shall be a lawful fence. The only repealing clause is:

"That all laws and parts of laws in conflict with the provisions of this Act be, and the same are hereby repealed"

--and the last section provides:

"That this act take effect from and after March 1, 1920."

That this alleged act of 1919, if it ever became a law, did not, by its...

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