Garretson v. Avery

• Decision Date: 16 December 1918
• Docket Number: 915
• Parties: GARRETSON v. AVERY
• Court: Wyoming Supreme Court

176 P. 433

26 Wyo. 53

GARRETSON v. AVERY

No. 915

Supreme Court of Wyoming

December 16, 1918

ERROR to the District Court, Big Horn County, HON P. W. METZ Judge.

Action by G. J. Garretson against H. C. Avery. Judgment for defendant, and plaintiff appeals.

Affirmed.

R. B Landfair, for appellant.

If one constructs a wire fence, it must be a lawful fence, as defined by Section 2578, Comp. Stats. 1910; and after so constructed, it must be maintained as a lawful fence, else the owner is liable for all damages to stock by reason thereof under Section 2588 Comp. Stats. 1910. Stock owners have implied license to depasture their stock on a public range and are not guilty of any contributory negligence in so doing. The negligence of respondent in not maintaining a lawful fence was the approximate cause of the death of the animal. (Sections 2578, 2588 Comp. Stats. 1910.) If a land owner has a lawful fence and a breachy animal breaks through and does damage, the owner of the animal is liable. (Section 2584, Comp. Stats. 1910.) Appellant had a right to assume that respondent maintained a lawful fence and an injury to appellant's stock by reason of respondent's unlawful enclosure creates a liability. (Loveland v Gardiner, 79 Cal. 317, 21 P. 766.) An enclosure is any ground enclosed by a lawful fence. (Smith v. Williams, 2 Mont. 195.) Stockgrowers have an implied license to depasture the public range. (Martin v. Sheep Company, 12 Wyo. 432; Live Stock Co. v. McIlquam, 14 Wyo. 209; Section 2614, Comp. Stats. 1910.) Where animals were lawfully running at large, recovery may be had unless the owner was guilty of actual negligence. (Isbell v. R. R., 27 Conn. 393, 71 Am. Dec. 78; Haughey v. Hart, 62 Iowa 96, 17 N.W. 189; Kerwhacker v. R. R., 3 O. St. 172, 62 Am. Rep. 246; Wilhite v. Speakman, 79 Ala. 400; 19 Cyc. 487; 29 Cyc. 444.)

R. B. West, for respondent.

The case arises under Section 2588, Comp. Stats. 1910. Defendant admits that in Wyoming livestock may lawfully run at large, but contend that if one maintains an unlawful fence, he will be liable in damage for injury occasioned by stock coming in contact with it; an enclosure is an artificial fence surrounding one's estate. (Bouvier Law Dictionary.) The only case we have found sustaining the damages for injuries to animals coming in contact with an unlawful fence is that of Sisk v. Crump, 2 Am. St. Rep. 213. The general rule is that no liability exists. (29 Cyc. 444.) The owner of land not enclosed by a lawful fence was held not liable for an ox killed by eating green corn upon the land. (Herald v. Myers, 28 Ia. 378.) A land owner is not permitted to construct traps or maintain dangerous places upon his land, but this rule has no bearing upon the case at bar. The recovery in the words of the statute is limited to injuries sustained by reason of unlawful wire fences. (Section 2588, Comp. Stats. 1910.) Apparently the legislative intention in limiting the liability to wire fences was that such fences improperly constructed or poorly maintained constituted a trap and might injure stock. Under plaintiff's theory, a land owner growing a crop of alfalfa unfenced would be liable to the owner of stock straying upon the same and dying from the effects of eating the alfalfa, but if the owner should commence the construction of a fence enclosing his land and before the completion thereof, cattle should stray upon his land and die from the effect of eating alfalfa, the land owner would be liable in damage. The result of such a construction would be so utterly absurd that no court would give it consideration. It is respectfully submitted that no liability is shown and that the judgment of the District Court should be sustained.

POTTER, CHIEF JUSTICE. BEARD, J., concurs. BLYDENBURGH, J., being ill, did not participate in the decision.

OPINION

POTTER, CHIEF JUSTICE.

This cause was heard in the district court upon a general demurrer to an amended petition, and the demurrer was sustained. The plaintiff excepted thereto and elected to stand upon the petition without pleading further, and thereupon a judgment was rendered in favor of the defendant. The case is here on appeal.

The petition alleges in substance: That on or about July 20, 1916, the defendant was occupying, using, enjoying, maintaining and in charge of a certain enclosure in Big Horn county, this state, to-wit: The NE 1/4 of the NE 1/4 of Sec. 27, Twp. 50 N., Range 93 W., within which said enclosure the defendant was cultivating and raising alfalfa grass. That he did not keep or maintain a lawful fence around said enclosure, but that the fence was unlawful in this: That in some places there were only two wires of the wire fence around the enclosure, between posts about 30 feet apart and without any stays between the posts; that the wires were loose and sagging; and the fence was in such condition that it would allow cattle to stray and enter the enclosure. That green alfalfa grass is a well known danger to cattle used to dry feed only. That on or about said date the plaintiff was the owner of a cow of the value of one hundred dollars, which he had allowed on that date and previous thereto to run upon the public range and was used to dry feed only. That the eating of green alfalfa grass by cattle used to dry feed only causes them to bloat and is invariably fatal to them, a fact generally known to all cattle raisers, ranchers, and well known by the defendant. That on or about said date, by reason of the careless, negligent and unlawful maintaining by the defendant of his said fence, the said cow of the plaintiff strayed in and upon the said enclosure and ate green alfalfa grass and thereby became bloated and died, to plaintiff's damage in the sum of $ 100. And judgment was prayed for that sum with interest and costs.

It will be observed from these allegations that the right of action or claim for damages is based solely upon the alleged fact that defendant maintained an unlawful wire fence around said land, referred to as his enclosure, which would allow cattle to stray and enter thereon. No other act of negligence or violation of duty is alleged, nor that the defendant was bound by contract or otherwise to build or maintain a fence enclosing the land or the crop growing thereon. And it is not here contended that there would be any liability on any other ground than that alleged in the petition. But the appellant's contentions are stated in his brief substantially as follows: 1. If a wire fence is constructed, it must be a lawful fence. 2. That, having been constructed, it must be maintained as a lawful fence, or the owner will be liable for all damages to stock caused by the failure to so maintain it. 3. That there is an implied license to depasture livestock on the public range, and the owner is not guilty of contributory negligence in doing so. 4. That respondent's negligence in failing to maintain a lawful fence was the proximate cause of the death of the animal.

Appellant concedes in his brief that no obligation to fence is imposed by law, and, further, quoting from the brief: "It is true the law is well settled that where there is no obligation to fence and trespassing stock go upon unenclosed lands no recovery can be had for damage to crops or damage to stock, each using ordinary care." But it is argued, in substance, that, although a landowner is under no obligation to fence out another's livestock, and may leave his land and growing crops unenclosed and himself thereby free from liability for injury to stock straying thereon, it becomes his duty, under the statute, when constructing a wire fence around or to enclose his land, to so construct it that it will be a lawful fence as defined by the statute; and that after it has been constructed the further duty is imposed upon him to maintain it as a lawful fence; and that the rule of no liability where there is no obligation to fence, and cattle or other domestic animals trespassing upon unenclosed lands are injured or die from eating some poisonous substance thereon or from falling into a pit, well or other excavation, is therefore not applicable.

The common law rule requiring the owner of cattle and other domestic animals to restrain them has never been in force in this state, because of different conditions existing rendering that rule inapplicable, the owner of such animals having a right to permit them to run at large and no actionable trespass is committed by such animals lawfully running at large straying upon unenclosed lands. (Hecht v. Harrison, 5 Wyo. 279, 40 P. 306; State v. Johnson, 7 Wyo. 512, 54 P. 502; Cosgriff v. Miller, 10 Wyo. 190, 68 P. 206, 98 Am. St. Rep. 977; Martin v. Platte Valley Sheep Co., 12 Wyo. 432, 76 P. 571, 78 P. 1093; Healy v. Smith, 14 Wyo. 263, 83 P. 583, 116 Am. St. Rep. 1004; Hardman v. King, 14 Wyo. 503, 85 P. 382; Gillespie v. Wheatland Industrial Co., 22 Wyo. 331, 140 P. 832, 52 L. R. A. (N. S.) 133, Ann. Cas. 1917A, 287, 52 L.R.A. 133.) The "reason for such non-liability", as explained in Gillespie v. Wheatland Industrial Co., "is not because they are not trespassing, but because no duty rests upon the owner to keep his stock off uninclosed land and he is not guilty of negligence in failing to do so or in permitting them to run at large; and being guilty of neither a wilful trespass, nor negligence in the care of his stock, he is not answerable in damages; and for the further reason that the land owner has the right to exclude such stock from his premises by fencing against them, or otherwise preventing them from coming or being thereon, and if he neglects to do so he takes the risk of trespass by animals lawfully running at large." But the rule of the common law that it is not the duty of a land owner to fence out or against the...