Beeson v. Tice

• Decision Date: 01 December 1896
• Docket Number: 2,081
• Parties: BEESON ET AL., BY NEXT FRIEND v. TICE
• Court: Indiana Appellate Court

45 N.E. 612

17 Ind.App. 78

BEESON ET AL., BY NEXT FRIEND v. TICE

No. 2,081

Court of Appeals of Indiana

December 1, 1896

Rehearing denied February 18, 1897, Reported at: 17 Ind.App 78 at 84.

From the Hamilton Circuit Court.

Reversed.

John F Neal and S.D. Stuart, for appellants.

Thomas J. Kane and Ralph K. Kane, for appellee.

OPINION

REINHARD, J.

On the 3d day of June, 1895, the appellants, Carl Beeson and Willis Beeson, both minors, were in charge of eleven milch cows, owned by different persons, who had intrusted the animals to their care under a contract made with them by which they were to herd the cows at a certain price per week for each head. The appellants, on the day named, and on other days prior thereto, were grazing the animals along the public highway leading out of the city of Noblesville, and on this occasion had proceeded but a short distance from said city, on their way, as appellants claim, to White river, for the purpose of watering said cows, when they were overtaken by the appellee, who was at the time the supervisor of roads of district No. 5, in which the animals were then found, and who took said animals away from the appellants and into his custody, claiming to do so in pursuance of his duty as such officer. The appellee thereupon impounded the animals and posted a notice that he had, as such officer, on the 3d day of June, 1895, "taken up the following described animals [being the cows mentioned], found running at large and pasturing upon the unenclosed lands and public commons of Noblesville township, Hamilton county, Indiana." On the 4th day of June, 1895, the appellants, by their next friend, instituted this action in replevin against the appellee, for the recovery of the possession of the cows.

The cause was tried by the court, without a jury, and there was a finding and judgment in favor of the appellee and against appellants for costs. The overruling of the appellants' motion for a new trial is the only error assigned.

There is no substantial conflict in the evidence. The facts heretofore set out are practically agreed upon, and the principal question made upon them is as to their sufficiency to entitle the appellee to the judgment from which this appeal is taken.

There was at the time no order of the county board permitting cattle or other animals to run at large. It would seem from the reading of the notice given by the appellee that the animals were taken up by the appellee by virtue of section 2833, Burns' R. S. 1894 (2639, Horner's R. S. 1896), which provides that "Whenever any animal shall be found running at large or pasturing upon any of the unenclosed lands or public commons of any township in any county in this state which shall not be specified in the order of the board of commissioners of said county, as in the preceding sections provided, to have the right to so run at large or pasture thereon, any person being a resident of said township shall be authorized to take up and impound said animal in any private or public pound within said township."

It will be observed that this section does not authorize the road supervisor, as such, to take up the animals, but it authorizes any resident of the township to do so. Perhaps the fact that the appellee in this case was the road supervisor is sufficient evidence to prove that he is also a resident of the township in which the animals were taken up. The difficulty, however, of bringing the present case within the purview of the section of the statute above quoted lies in the fact that here the animals were not pasturing upon the public commons or upon any unenclosed lands, for it cannot be held that a public highway is a common or an unenclosed piece of land. The International Dictionary defines a common to be "an enclosed or unenclosed tract of ground, for pasturage, for pleasure, etc., the use of which belongs to the public or to a number of persons."

Anderson's Law Dictionary gives it the definition: "The common field; ground set apart for public uses."

We must take judicial cognizance of the fact that a public road or highway is not a common. It is used by the public under the right of eminent domain, and outside of this the owner of the fee has the absolute dominion over the soil. He doubtless has the right of pasturage and other products growing in the soil of the untraveled portion of the road adjoining his lands, and may have a remedy against all persons trespassing upon these rights. But it is only by statutory enactments that a supervisor of highways or other person is authorized to take up stock pasturing in the highway, and it is to the statutes alone that the courts must look when called upon to declare such authority in favor of any person.

Indeed it is not contended by the learned counsel for the appellee that the animals in charge of the appellants in this highway, were taken up by the appellee under and by virtue of the provisions of the section of...