Bertwistle v. Goodrich

• Citation: 53 Mich. 457,19 N.W. 143
• Court: Supreme Court of Michigan
• Decision Date: 23 April 1884
• Parties: BERTWISTLE v. GOODRICH.

19 N.W. 143

53 Mich. 457

BERTWISTLE v. GOODRICH.

Supreme Court of Michigan

April 23, 1884

When cattle are in the public highway, in charge of a person directing or controlling their movements, they are not running at large within the meaning of the statute.

Error to Ingham.

S.L Kilbourne, for plaintiff.

Black &amp Dodge, for defendant and appellant.

CHAMPLIN J.

Plaintiff brought replevin to recover possession of a herd of cattle which the defendant had driven from the public highway in front of his premises into his barn-yard claiming that they had been there every day for a week or more, greatly to his discomfort and annoyance; also that they were at large in the highway, contrary to law; also that they were trespassing upon his premises, which authorized him to take them into his possession, under section 2108, How.St. It was admitted, on the trial, that this replevin suit was brought before any demand was made for the cattle, and that, if the defendant had the right to take them up in the first instance, his subsequent steps were regular and lawful. It was also admitted by counsel for plaintiff that the board of supervisors of Ingham county had passed a resolution prohibiting animals from running at large in the highways in the township where these cattle were taken up. The plaintiff's testimony, and that of his witnesses, showed that these cattle were in charge of a boy about 13 years old; that they were being held in front of defendant's house by this boy; that when they passed by the boy went around them and drove them back, and made an effort to keep them in front of the defendant's house. The defendant, on the trial, contended that the cattle were at large within the meaning of the statute. If not, that they were trespassing upon his premises; and that, whatever might be the defendant's rights under the statute, the pasturing of the plaintiff's cattle in the highway, in front of the defendant's house, as shown by the defendant's testimony, amounted to a nuisance; and that the defendant's act in turning the cattle from the highway into his barn-yard was lawful, being the most direct means of abating the nuisance. The circuit judge held that the defendant had no standing in court; that, inasmuch as the boy was with the cattle, they were not at large in the highway; that if the trespassing of the cattle was annoying to the defendant, he was not authorized to turn them into his barn-yard, but could bring a suit for his damages. The court, therefore, directed a verdict for the plaintiff, to which the defendant excepted, and appeals to this court.

The statute referred to provides that "it shall be the duty of the overseer of highways to seize and take into his custody...