Clarendon Land, Investment & Agency Co. v. McClelland

• Decision Date: 30 April 1896
• Parties: CLARENDON LAND, INVESTMENT & AGENCY CO., Limited, v. McCLELLAND et al.
• Court: Texas Supreme Court

35 S.W. 474

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

Supreme Court of Texas.

April 30, 1896.

On rehearing. Overruled.

For prior opinion, see 34 S. W. 98.

BROWN, J.

Counsel for defendants in error have entered a vigorous and earnest protest against the conclusions announced by this court in our opinion heretofore rendered in this case; and, on account of the importance of the questions involved, we have given more than usual time to a mature and thorough reconsideration of the opinion heretofore delivered upon the points objected to in motion for rehearing.

Counsel announces that the rule laid down by this court will operate disastrously to certain portions of the state, and to certain interests involved therein or affected thereby. The law upon this subject applies to all portions of the state alike, and to all interests of the different classes of citizens, whether they be in one part or another of its territory. It has been held that the law of this state upon the subject of lawful fences does not apply to lands used for pasture purposes, but this does not make a distinction between agricultural lands located in the Pan Handle or other grazing portions of the state, and like land located in the agricultural sections. If lands be used in the grazing districts for agricultural purposes, it must be inclosed by a fence, such as is prescribed by the statute, in order to enable the owner to recover damages for trespass committed by cattle or horses belonging to other persons. Likewise, if lands in the agricultural section of the state be used for pasture purposes, the rights of the owner must be governed by the same rule as the rights of like owners of land used for like purposes in any other part of the state. The courts cannot limit the operation of any decision announced to any particular district or country. It is within the power of the legislature to so adjust the laws as to give them local effect upon these questions; and, if the law as it exists is inapplicable to any particular section, then the legislature has the authority to so change the law as to adopt it to the best interests of the people living in such section, and we presume that it will be done whenever the necessity arises.

It is claimed on the part of the defendants in error that the charges asked by the plaintiff in error in the court below, and refused by the trial judge, embrace substantially the same proposition as those given by the court in its general charge to the jury. This is true as to some portions of the charge, but not as to others; and, upon careful examination of those charges, we do not think that it can be properly said that the errors for which this judgment has been reversed can be attributed to the action of the defendant. The charge given by the judge who tried the case in the district court is admirably framed to express his view of the law applicable to the facts; but we believe that the view presented by the charge of the court is not correct, and that the error resulted from a misconception of the opinion delivered in this case when it was before this court at a former term. It is claimed that the opinion of the court as last rendered is in conflict with the opinion delivered upon a former hearing, but, upon examination of both opinions, we do not think that this criticism is justified. We will not, however, enter into a discussion of that matter on this motion.

It is claimed that the opinion now under review is erroneous in announcing these propositions: (1) "If plaintiffs' fence was sufficient to turn cattle of ordinary disposition, and defendant's cattle were, to an extent more than usual with such stock, disposed to break through fences, if this was known to the defendant or its servants, and, by reason of that disposition, the cattle broke into plaintiffs' inclosure, defendant would be liable for such damage as would usually arise from such trespass; and if the defendant's cattle so entering were liable to impart to others a disease by contact and association with them, and defendant knew this, or had good reason to believe it true, then it would be liable for the effects of such disease, if communicated by its cattle entering the pasture under the circumstances stated. If, however, the defendant did not know of the vicious or fence-breaking character of its cattle, and had no knowledge of circumstances sufficient to charge it with notice thereof, it would not be liable for damages occasioned by such an entry upon plaintiffs' land." (2) "If the defendant knew that its cattle were unusually disposed to break fences, but did not know, and had no good reason to believe, that they were liable to impart disease to others, it would not be liable for the effect of such disease actually imparted to the plaintiffs' cattle by such a breaking of their fence." As it has been before held by this court, the common law upon the subject under consideration is not in force in this state, and therefore the rules of law applied in determining the liability of the owner of stock for...