Delaney v. Errickson

• Decision Date: 11 November 1881
• Citation: 10 N.W. 451,11 Neb. 533
• Parties: JOHN DELANEY, PLAINTIFF IN ERROR, v. CHARLES ERRICKSON, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

10 N.W. 451

11 Neb. 533

JOHN DELANEY, PLAINTIFF IN ERROR, v. CHARLES ERRICKSON, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 11, 1881

REHEARING of case reported in 10 Neb. 492.

Affirmed.

OPINION

LAKE J.

While a further and more particular examination of this case leads to a different result from that previously announced, 10 Neb. 492, we find no reason for changing in any respect our former opinion upon the three points therein discussed, but still adhere strictly to all that is there said. Therefore nothing more need here be done than to state briefly the reasons why we now conclude that the judgment of the court below should be affirmed.

At the first hearing the principal point respecting the alleged trespass brought to our notice was whether in this state the owner of domestic animals might lawfully permit them to wander upon and depasture the uninclosed, uncultivated lands of others. And our opinion on that branch of the case did not go beyond this, holding that he could. But, in reality, the record presented the further question, whether the plaintiff in error had the right to drive his animals upon such lands for the purpose of pasturage without the owner's permission? This is a very different question from the one previously decided, and we must answer it in the negative.

While it is true that Delaney would not have been answerable for indirect intrusions of his animals upon the land in question, he was not at liberty to drive, or have them driven, and kept there, against the wish of Errickson, as the evidence shows very conclusively that he did. We know of no law requiring as a condition to one's right to the exclusive enjoyment of his own estate as against the willful, injurious acts of others, that he shall keep it inclosed by a fence. No statute, that we are aware of, so declares; and such is not the rule of the common law, which has so great regard "for private property that it will not authorize the least violation of it." 1 Broom & Hadley's Com., Am. Ed., 116.

The theory of the defense to the alleged trespass is shown by an instruction to the jury, requested on behalf of Delaney, and which the court very properly refused to give. It was in these words: "If you find that the land in question was uncultivated, wild prairie land, and uninclosed and land upon which the inhabitants of that neighborhood had uninterruptedly herded their cattle and stock from the first settlement of the country, then the plaintiff is not liable in this action." Several other instructions of the same import were also requested and refused; but the court did instruct that if the jury found "that Errickson notified Delaney that he, Errickson, had leased the land in controversy, that he, Delaney, must keep his stock off the same," and that regardless of this notice "Delaney drove, kept, and herded sheep thereon," then they should "find for Errickson whatever damages the stock of Delaney did while so...