Evans v. McLalin

• Decision Date: 14 April 1915
• Citation: 175 S.W. 294,189 Mo.App. 310
• Parties: R. M. EVANS, Appellant, v. ED. McLALIN and ANNA McLALIN, Respondents
• Court: Missouri Court of Appeals

175 S.W. 294

189 Mo.App. 310

R. M. EVANS, Appellant, v. ED. McLALIN and ANNA McLALIN, Respondents

Court of Appeals of Missouri, Springfield

April 14, 1915

Appeal from Saint Clair County Circuit Court.--Hon. Chas. A Calvird, Judge.

Judgment affirmed.

J. C Hargus for appellant.

(1) Trespassing chickens and likewise cattle and horses could be restrained at common law and the owners thereof were liable in damages for the trespassing of same. 3 Blackstone Com page 7; 2 Cyc., page 402, note 73; State v. Neal, 120 N.C. 613, 27 S.E. 81, 58 Am. St. 810; McLean v. Berkabile, 123 Mo.App. 652; O'Riley v. Diss, 41 Mo.App. 188; Growney v. Railroad, 102 Mo.App. 446; Clark v. Keliher, 107 Mass. 409. (2) The court will take judicial notice of the adoption of the common law in Missouri. Also see Sec. 8047, Revised Statutes 1909, page 2516. (3) The common law is the law of Missouri unless abrogated by statute. Sec. 6455, R. S. 1909, abrogates the common law so far as the animals named are concerned, to-wit: horses, cattle and swine. But this statute cannot be extended to include chickens. Canefox v. Crenshaw, 24 Mo. 203.

John A. Gilbreath for respondent.

(1) Sec. 8047, R. S. 1909, sets out what common law is in force in this State. (2) In this State the owner of land is not bound to keep his domestic animals upon his own premises or to fence them in but they are allowed free range and the owners do not become liable, in case they trespass upon the land of another and do damage. Owens v. Railroad, 58 Mo. 386; Schwartz v. Railroad, 58 Mo. 207; Hill v. Railroad, 121 Mo. 447; Turner v. Railroad, 78 Mo. 578, 581; Turner v. Railroad, 49 Mo.App. 520; Busby v. Railroad, 81 Mo. 43; Stien v. Railroad, 55 Mo. 33; Davis v. Railroad, 19 Mo. 425. (3) In this State domestic animals are commoners and have a right to run at large and the party who wishes to keep them off his premises must fence against them. Leach v. Lynch, 144 Mo.App. 395. (4) If the common law was in force and effect since 1816, in Missouri, as contended by appellant, why need the Legislature grant the power to cities to restrain chickens from running at large? Secs. 9229, 9374, R. S. 1909. (5) The passing of a law upon a subject not previously legislated upon, or an act giving new power or additional right has from time immemorial been denominated and accepted by the courts, and bar, and the public as a legislative construction that no law existed on the subject or that no such right and power was contained therein. Wyckoff v. Hotel, 24 Mo.App. 389; Potter's Dwarris on Statutes, page 73; Veneable v. Railroad, 112 Mo. 103; Hannibal v. Railroad, 30 Mo. 550; Pike v. Megown, 44 Mo. 491.

STURGIS, J. Robertson, P. J., and Farrington, J., concur.

OPINION

STURGIS, J.

This is a suit for damages resulting from trespassing chickens. The plaintiff is a farmer and adjacent landowner to the defendants who owned the chickens which have trespassed on plaintiff's land and damaged his garden and growing crops. The trial court sustained a demurrer to the petition and the sole question is as to defendants' liability for damages so occasioned. The real question is whether under the law of this State, in the absence of any express statute on the subject, the owner of domestic fowls must so restrain them as to prevent their trespassing on the land of another or must such other landowner protect his land against such trespass or suffer the incidental injury without redress.

We have been fully impressed with the gravity of the question at issue by the assertion on one side and the tacit admission on the other that Missouri is the greatest poultry State in the Union and that the products of this industry for three years would be of sufficient value to pay for building the Panama Canal. For the purposes of this case we accept, without verifying, the truth of this statement. Though thus impressed with the importance of this cause, our diligence has not been rewarded with finding a case in point in this State nor in any other State, except our neighbor and rival on the north as will be later noted.

It is asserted that under the common law of England, adopted in this State at an early date, domestic animals, including fowls, are required to be restrained by the owner from running at large. Contra, it is said that only so much of the common law of England has been adopted as is of a general nature and not local to that kingdom. [Section 8047, R. S. 1909.] So far as the common law requires the owner of domestic animals to restrain them from straying from his own land to that of another to his damage is concerned, the negative has all the authorities in its favor. It was held at an early date in this State (Gorman v. Railroad, 26 Mo. 441), that: "It has always been the understanding as to the law in this State that our statute concerning inclosures entirely abrogated that principle of the common law which exempted the proprietor of land from the obligation of fencing it, and imposed on the owner of animals the duty of confining them to his own premises. No conviction has more thoroughly occupied the public mind than this, and nothing would sooner arouse the attention of the community than an apprehension that the old rule of the common law was to any extent to be revived." And in McPheeters v. Hannibal & St. J. R. R. Co., 45 Mo. 22, the court, speaking on this point, said: "But such is not, and never was, the common law in Missouri. It is opposed to the policy of the State in its present condition, and whenever it has been attempted to be enforced, it has met with resistance and condemnation." As to damages caused by trespassing animals the law is: "In this State the owner of land is not bound to keep his domestic animals upon his premises or to fence them in, but they are allowed what is called a 'free range,' and he does not become a trespasser from the fact that they stray upon the unfenced lands of another proprietor." [Hill v. Railroad, 49 Mo.App. 520.] There are innumerable cases asserting this to be the law and if this case was one for damages arising from cattle, horses, hogs or such animals, trespassing on plaintiff's crops, in the absence of his having a lawful fence, the law is plain that he cannot recover. This court, in the case of Leach v. Lynch, 144 Mo.App. 391, 394, 128 S.W. 795, had occasion to determine that a goat is of the class of domestic animals which are commoners and have a right to run at large and a party wishing to keep them off his premises must fence against them. In Canefox v. Crenshaw, 24 Mo. 199, the duty to fence one's own premises against domestic animals rather than require the owner to fence them in is fully recognized, but is held not to apply to an animal ferae naturae, as a buffalo.

While chickens and like domestic fowls are not animals in the usual acceptance of that term, yet granting that they are included by the common law with domestic animals as among the living creatures which are to be restrained by the owner from running at large (Clark v. Keliher, 107 Mass. 406), by analogy of reasoning, if the common law in this respect has never been in force in this State as to domestic animals, neither has it been in force as to domestic fowls, being opposed, as said by Judge WAGNER in McPheeters v. Hannibal & St. J. R. R. Co., 45 Mo. 22, to the policy of this State, or, as said in McLean v. Berkabile, 123 Mo.App. 647, 100 S.W. 1109: "In this State at a time in its early history when there was much unoccupied and uninclosed land, this rule was deemed by the Supreme Court to be unsuited to the needs of a sparsely settled country and in its construction of legislation relating to the subject the court held that domestic animals should be allowed to range at will over uninclosed lands and compelled the owners of cultivated fields to fence against such animals if they would escape their depredations."

It is a circumstance, not without much weight, that while it is common knowledge that chickens have been allowed to run at large for years, and, as respondent aptly says, "The court will take judicial notice and knowledge that no law rule of action or conduct has ever prevailed, in this State, concerning chickens, other than unbridled license, unrestrained...