Clarendon Land, Investm. & Agency Co. v. McClelland

• Decision Date: 19 October 1893
• Parties: CLARENDON LAND, INVESTMENT & AGENCY CO., Limited, v. McCLELLAND et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

23 S.W. 576

CLARENDON LAND, INVESTMENT & AGENCY CO., Limited, v. McCLELLAND et al.¹

Supreme Court of Texas.

October 19, 1893.

Error from court of civil appeals of second supreme judicial district.

Action by McClelland Bros. against the Clarendon Land, Investment & Agency Company, Limited. A judgment for plaintiffs was affirmed by the court of civil appeals, (21 S. W. Rep. 170,) and defendant brings error. Reversed.

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

GAINES, J.

This suit was brought in the district court of Donley county by the defendants in error to recover of plaintiff in error damages for an alleged trespass of the latter's cattle upon the pasture of the former. It was claimed in the petition that the plaintiffs' cattle had died by reason of a disease communicated to them by those of the defendant. There was a judgment for the plaintiffs, which, upon appeal by the defendant, was affirmed in the court of civil appeals. It was shown upon the trial that the plaintiffs were the owners of a pasture embracing 2,000 acres, which was inclosed by a wire fence, and upon which they held about 100 head of cattle. This pasture was entirely surrounded by a much larger one, which was owned by the defendant corporation, and which was also inclosed by a fence of the same general character. The fence of plaintiffs, as they testified, was constructed of "posts about 30 feet apart, with four barbed wires, and three or four stays between each post." In 1889 the defendant company placed in its pasture a large number of East Texas cattle, which were less in size than the cattle of the Panhandle section. Some of these cattle passed through the plaintiffs' fence, and into their pasture, and there was evidence sufficient to justify a finding that they communicated a disease to some of plaintiffs' cattle, from which they died. The fence appears to have been passed through by the young cattle, presumably the calves and yearlings. One of the plaintiffs testified that "they [meaning the cattle] would crawl through the fence." The other also testified as follows: "They were small, and just walked through our fence."

The court charged the jury as follows: "Every entry of one's own cattle upon the lands or premises of another is a trespass, and the owner of such cattle will be liable for any damages sustained by the owner of such premises, if any, provided such lands or premises were at the time of such entry inclosed by a fence sufficient to exclude therefrom such cattle or animals as were accustomed to be used in the country or the range around and about such inclosed premises, and provided, further, that such trespass is effected by a forcible entry through such fence or inclosure." This charge was assigned as error, upon the appeal to the court of civil appeals, and the assignment is insisted upon in this court. Neither the courts nor the legislature of this state have ever recognized the rule of the common law of England which requires every man to restrain his cattle either by tethering or by inclosure. Davis v. Davis, 70 Tex. 123, 7 S. W. Rep. 826. Hence, if the cattle of one person wander upon the uninclosed lands of another, or upon his lands imperfectly inclosed, they are not trespassers, and the owner is not liable for any damage that they may inflict. It follows that one who desires to secure his lands against the encroachments of live stock running at large, either upon the open range or in an adjoining field or pasture, must throw around it an inclosure sufficient to prevent the entry of all ordinary animals of the class intended to be excluded. If he does not, the owner of animals that may encroach upon it will not be held liable for any damage that may result from such encroachment. This is the necessary result of the right of the owners of domestic animals to permit them to run at large as recognized by the laws of this state. Since he does not owe the duty of confining his cattle, he is guilty of no negligence, and he does no wrong by allowing them to go unconfined, and is...