Clarendon Land, Investment & Agency Co. v. McClelland

• Decision Date: 26 June 1895
• Citation: 31 S.W. 1088
• Parties: CLARENDON LAND, INVESTMENT & AGENCY CO., Limited, v. McCLELLAND et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

31 S.W. 1088

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

Court of Civil Appeals of Texas.

June 26, 1895.

Appeal from district court, Donley county; H. H. Wallace, Judge.

Action by McClelland Bros. against the Clarendon Land, Investment & Agency Company, Limited, for trespass by cattle. From a judgment for plaintiffs, defendant appeals. Affirmed.

W. R. Butler and Matlock & Peacock, for appellant. Browning & Madden, for appellees.

HEAD, J.

Appellant owned in Donley county a large pasture, which entirely surrounded a smaller one, owned by appellees, which it is alleged "was securely fenced, and inclosed with a good and sufficient fence, capable of preventing the entry of all ordinary cattle, of whatever class, age, or kind." For reasons hereafter stated, the sufficiency of the evidence to sustain this allegation is not before us for consideration. Appellant turned into its pasture a lot of cattle shipped from Tarrant and adjoining counties, which broke into appellees' pasture, and communicated to their blooded cattle running therein a malignant and generally fatal disease called Texas or Spanish fever, and to recover the damage thus caused this suit was instituted. The case was before this and the supreme court upon a former appeal (see 21 S. W. 170, and 86 Tex. 179, 23 S. W. 576, 1100) and was by the latter remanded for a new trial. The legal questions here presented are almost identical with those passed upon in the two decisions referred to, and a rediscussion thereof will be unnecessary.

In its first assignment appellant insists that the court should have explained to the jury what was meant by "ordinary cattle" in the charge. We think any attempted definition of this term would have had a greater tendency to confuse than enlighten an ordinary jury. At any rate, appellant should have requested a proper definition, if it desired one given; and this it failed to do in its special charge, in which this term was said to mean "cattle not known to the owner to be diseased, vicious, or breachy." Knowledge on the part of the owner of his cow's diseased condition or vicious or breachy nature is not necessary to take her out of the ordinary and put her in the extraordinary class. The court instructed the jury "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"; and appellant complains thereof, upon the ground that it presented issues not raised by the...