Atkinson v. Mott

• Decision Date: 02 April 1885
• Citation: 26 N.E. 217,102 Ind. 431
• Parties: Atkinson v. Mott et al.
• Court: Indiana Supreme Court

102 Ind. 431

26 N.E. 217

Atkinson

v.Mott et al.¹

Supreme Court of Indiana.

April 2, 1885.

Appeal from circuit court, Benton county.

M. H. Walker, I. H. Phares, J. R. Coffroth, and T. A. Stuart, for appellant. D. Smith and G. H. Gray, for appellees.

BLACK, C.

The appellees, Prudence Mott and her husband, sued the appellant to recover damages for injuries to the property of said Purdence, done by trespassingcattle of the appellant. The complaint consisted of five paragraphs, which were alike, except as to the times at which the cattle were alleged to have entered, and as to the property injured, and except that the first four paragraphs charged the breaking and entering into land in the occupation and lawful possession of said Prudence, while in the fifth it was alleged that the cattle broke and entered into certain other land owned by said Prudence in fee-simple. In each paragraph the cattle were alleged to have been owned and controlled by the defendant, and to have entered the land so owned or occupied by breaking through a partition or inside fence, which separated the plaintiff's premises from adjoining land, on which the defendant was pasturing said cattle. It was in each paragraph alleged that “the defendant wrongfully, carelessly, and negligently suffered and permitted his cattle to break,” etc. The defendant's demurrer to each paragraph of the complaint, for want of sufficient facts, was overruled. There was an answer in denial. A jury returned a verdict for the plaintiff. The defendant's motion for a new trial was overruled, and judgment was rendered on the verdict.

The statute of 1877 (section 4835, Rev. St. 1881) provides: “If any domestic animal break into an inclosure or wander upon the lands of another, the person injured thereby shall recover the amount of damage done: provided, that in townships where, by order of the board of county commissioners, said domestic animals are permitted to run at large, it shall appear that the fence through which said animal broke was lawful; but where such animal is not permitted to graze upon the uninclosed commons, it shall not be necessary to allege or prove the existence of a lawful fence in order to recover for the damage done.” The making of the order of the board of commissioners, to which reference is made in this statute, is a matter of which courts, in such cases, will not take notice, unless it be shown as other facts must be shown; and, in the absence of any averment that such an order had been made, it must be assumed, for the purpose of the ruling upon the demurrer, that there was no such order, and that, as at common law, the owner of the trespassing cattle was responsible to the person injured. Another section of the statute (section 4848, Rev. St. 1881) provides what shall be a lawful partition fence; and if it had appeared that such an order had been made by the board of county commissioners, it would have been necessary for the plaintiffs to show that the cattle broke through a lawful fence, or that they broke through a fence defective through the failure of the defendant to perform his contract duty to the plaintiffs. Hinshaw v. Gilpin, 64 Ind. 116;Baynes v. Chastain, 68 Ind. 376. But as it did not appear that such an order had been made by said board, the express provision...