Clarendon Land, Inv. & Ag. Co. v. McClelland

• Decision Date: 10 February 1896
• Parties: CLARENDON LAND, INV. & AG. CO., Limited, v. McCLELLAND et al.
• Court: Texas Supreme Court

34 S.W. 98

CLARENDON LAND, INV. & AG. CO., Limited, v. McCLELLAND et al.

Supreme Court of Texas.

February 10, 1896.

Error to court of civil appeals of Second supreme judicial district.

Action by McClelland Bros. against the Clarendon Land, Investment & Agency Company, Limited, for trespass by cattle. From a judgment of the court of civil appeals (31 S. W. 1088) affirming a judgment for plaintiffs, defendant brings error. Reversed.

W. R. Butler and Matlock & Peacock, for plaintiff in error. Browning & Madden, for defendants in error.

BROWN, J.

McClelland Bros., the defendants in error, owned a pasture in Donley county, consisting of about 2,000 acres of land, which was inclosed by a wire fence on cedar posts. The fence, however, was not a lawful fence, under the law of this state as applicable to cultivated lands. In the pasture they had cattle of the Shorthorn, Jersey, and Holstein breeds, consisting of full bloods and grades of those breeds. The plaintiff in error, a corporation organized under the laws of Great Britain, owned lands in the same county, which entirely surrounded that of McClelland Bros., and which lands the plaintiff in error inclosed for the purpose of pasturing cattle thereon. In the year 1889, the corporation bought about 4,000 head of yearlings, called by the witnesses "dogies," in Tarrant and other counties east of that, which were placed in the pasture of the corporation. Some of the yearlings passed out of the pasture of the plaintiff in error into that of the defendants in error at different times during that year. After the yearlings were in the pasture of the defendants in error, a number of their fine cattle died from a disease called "Texas fever"; but it does not appear, from the evidence, that the yearlings had the disease at the time. McClelland Bros. sued the corporation for the value of the cattle that died, and for damages to others that had the fever, but did not die, charging that the yearlings of the plaintiff in error were of a breachy character, and that they were liable to communicate the Texas fever to the cattle of the plaintiffs, all of which was alleged to be known to the said corporation or its agents. The corporation answered by general denial, and by special plea to the effect that the plaintiffs' fence was insufficient to turn the cattle of the said corporation, and that the plaintiffs therein were guilty of negligence in not keeping their fence in proper repair. It also denied that the said cattle were breachy in character, or liable to communicate any disease to the plaintiffs' cattle; but, if such were the fact, then it alleged that it did not know of such fact. Trial was had before a jury, which resulted in a verdict and judgment for the plaintiffs, McClelland Bros., for $1,748.36, which judgment was affirmed by the court of civil appeals. 31 S. W. 1088.

This case was before this court on writ of error granted to a judgment rendered by the court of civil appeals (21 S. W. 170), affirming a judgment of the district court at a former trial. The report of the case, as decided in this court, will be found in 86 Tex., on page 179, 23 S. W. 576, 1100. By the opinion of the court, by Justice Gaines, these propositions of law are clearly announced: (1) That the common-law rule, which required every man to restrain his cattle either by tethering or by inclosure, is not in force in this state, and that every owner of land in this state, who desires to exclude therefrom cattle running at large, or in an adjoining pasture, situated as these pastures were, must throw around his own land an inclosure sufficient to exclude all animals, of the class intended to be excluded, of ordinary disposition as to breaking fences or inclosures. (2) It is the right of every owner of domestic animals, which are not known to him to be vicious, mischievous, or diseased, to allow them to run at large, or to occupy his own inclosed lands when adjoining those of another. (3) If the owners of land have around it a fence sufficient to turn cattle of all sizes and kinds, of ordinary disposition as to breaking fences, and the inclosure is entered by cattle which are known to the owners to be vicious, in the sense that they have the habit of breaking into inclosures when the same class of cattle would not ordinarily do so, the owner of such cattle would be liable for such damages, thereby occasioned, as would ordinarily result from such trespass; and if, in addition to the known habits of fence breaking, the owner knows, or has reason to believe, that such cattle would be liable to communicate an infectious disease to others upon coming in contact with them, the owner would be liable, in case of trespass by such cattle by breaking such fence, for the damage occasioned by the communication of such infectious or contagious disease to the cattle belonging to the owner of the inclosure so broken.

Upon the second trial of this case in the district court, the judge gave charges which are deemed to be in conflict with the rules of law announced in the former opinion, of which charges plaintiff in error complains, in its application for writ of error herein. We think the use of the word "ordinary," in its connection with other language in the third charge, as given by the court, was calculated to mislead the jury; yet, if the defendant desired it explained, it should have asked a proper charge upon the subject. The second special charge requested by the defendant, and refused by the court, was properly refused, because it assumed that the plaintiffs' fence was defective, and no other charge was asked which tended to explain the word "ordinary" as used in the third paragraph of the charge of the court. The second charge given by the trial court reads as follows: "You are instructed, under the law applicable to this case, that if the cattle of one person wander from the owner's range or pasture upon the uninclosed or imperfectly inclosed lands of another, they are not trespassers; and the owner is not liable for any damage they may inflict, unless such owner knew that the cattle could pass through such inclosure, and that they were likely to communicate disease to the cattle of the person whose inclosure they might enter." The same proposition is announced in the fifth and sixth charges of the court, which make an application of the principle announced in the second charge to the particular facts of the case. The effect of these charges was to instruct the jury that if the plaintiffs' lands were imperfectly inclosed,—that is, if the fence around them was not sufficient to keep out cattle of ordinary disposition as to fence breaking,—and if the owner of the cattle knew that the fence was imperfectly constructed, then the owner of such cattle would be liable for damages which might be occasioned to the plaintiffs' cattle by reason of their passing through the imperfect fence of the plaintiffs. In other words, a man who owns land, and has around it a fence which is insufficient to exclude from his premises the cattle of his neighbors, can, by giving notice to such neighbors of the imperfect condition of his own fence, cast upon them the burden of restraining their stock from running at large upon the range, or, as in this case, from permitting the cattle to occupy the pasture lands of the defendant, and to render the defendant in this case liable for damages which might have been committed upon the plaintiffs' land by reason of the defective condition of the plaintiffs' fence, because of the fact that the owner of the cattle had notice of the defects in the fence. If such a proposition were correct, as a matter of law, then it would change the rule as announced in the opinion of this court, which is well sustained...