Gillespie v. Wheatland Industrial Co.

• Decision Date: 15 May 1914
• Docket Number: 779
• Citation: 140 P. 832,22 Wyo. 331
• Parties: GILLESPIE v. WHEATLAND INDUSTRIAL CO
• Court: Wyoming Supreme Court

140 P. 832

22 Wyo. 331

GILLESPIE v. WHEATLAND INDUSTRIAL CO

No. 779

Supreme Court of Wyoming

May 15, 1914

ERROR to the District Court, Laramie County; HON. RODERICK N MATSON, Judge.

Alexander B. Gillespie brought the action against the Wheatland Industrial Co., a corporation, to recover damages for the death of cattle belonging to the plaintiff caused by their falling into an open ditch upon uninclosed land owned by the defendant. From a judgment for the defendant the plaintiff brought error. The other material facts are stated in the opinion.

Affirmed.

Frank E. Anderson, for plaintiff in error.

The failure of the company to guard the excavation was the natural and proximate cause of the injury to and loss of the cattle, and not the storm. (Ditch Co. v. Morrow, 8 Wyo. 537). The ditch was negligently maintained upon the open range. Plaintiff's cattle were not trespassing upon the land. (State v. Johnson, 7 Wyo. 512). And defendant is liable for the natural, ordinary and reasonable consequence of its neglect. (1 Sutherland on Damages, 57; Howell v. Big Horn B. C. Co., 14 Wyo. 24; 1 Thomp on Neg., Sec. 957; Haughey v. Hart, 62 Ia. 96, 49 Am. Rep. 138; Jones v. Nichols, 46 Ark. 207, 54 Am Rep. 575; Noblesville Gas & Imp. Co. v. Teter (Ind.), 26 N.E. 635; Young v. Harvey, 16 Ind. 314). The defendant was chargeable with knowledge that storms might occur, and that stock on the open range might drift with the storm upon its uninclosed land, and under these conditions leaving the ditch unguarded and unfenced was not such conduct as would be exercised by a reasonably prudent man. The defendant was liable under the statute making reservoir owners liable without regard to negligence for all damages arising from leakage or overflow of the waters of the reservoir, or by floods caused by breaking the embankments thereof. (Rev. Stat. 1899, Sec. 974).

Clark & Clark, for defendant in error.

The question is whether a land owner is under any obligation to safeguard dangerous structures upon his land in order to prevent injury to trespassing cattle. The present action seems to have been instituted under a misconception of the ground of the decision in Ditch Co. v. Morrow, 8 Wyo. 537. There the ditch company had utilized a natural draw as part of its ditch and by reason of the excessive grade a deep channel had been washed which became dangerous to animals. The plaintiff in that case was the owner of the land through which the dangerous channel had been washed, subject to an easement of the ditch company for its ditch, and he therefore had a right to graze and range his animals upon the land. The decision was therefore based, and properly so, upon the fact that the cattle were rightfully upon the premises. The cases cited and relied upon by counsel for plaintiff are not applicable to the facts in the case at bar. They were decided upon exceptions to the general rule that it is not the duty of the owner of uninclosed lands to render them safe for straying cattle. While an actionable trespass is not committed by cattle straying upon the land of another, that results from statutes placing the burden upon the landowner to protect his land against such cattle by fencing; but the cattle nevertheless are not rightfully upon the land, and are therefore trespassing thereon. It is the general rule that the owner or the one in possession of land is under no legal obligation to keep it safe for the protection of animals running at large. (1 Thomp. on Neg., Sec. 155). That rule is applicable to this state. (Martin v. Ry. Co., 15 Wyo. 493. See also Hughes v. R. R. Co., 66 Mo. 325; Wilt v. Couglin, (Mo. App.) 161 S.W. 888; Beinhorn v. Griswold, 27 Mont. 79, 69 P. 557). The statute cited in the opposing brief imposing liability upon reservoir owners refers only to damage caused by the leakage of water, and has no application to the facts in this case. The plaintiff seeks to recover for negligence, and the negligence complained of is the failure to fence the ditch, not the construction of a pit-fall. But a land owner is under no duty to the straying cattle of others which prevents him from maintaining an excavation upon his land.

BEARD, JUSTICE. SCOTT, C. J., and POTTER, J., concur.

OPINION

BEARD, JUSTICE.

In this action the plaintiff in error, who was plaintiff below sought to recover damages for the loss of certain cattle which fell into a ditch and were killed. So far as necessary to understand the question presented here, the facts as stated in the petition are, that the defendant owned, operated and constructed a certain reservoir and irrigation works; that it constructed a spillway in the reservoir for the purpose of carrying off the surplus waters accumulating therein and that great quantities of water from said spillway flowed across a certain section of land, causing a deep ditch to be washed out across said land, which ditch was unsafe and dangerous to live stock crossing the range at or near said reservoir and spillway. That defendant knowingly, wilfully, carelessly and negligently maintained said ditch in a dangerous condition, and failed and refused to fence or guard it in any manner, although aware of its dangerous condition. That certain cattle of plaintiff were caused by a snow storm to travel toward said unguarded ditch, fell therein and were killed by reason of defendant's negligence in not properly fencing and guarding said ditch. The defendant, among other defenses pleaded in its answer, admitted the ownership and control of the reservoir and that water flowed therefrom through said spillway, and that the water therefrom caused a ditch to be formed across the land described in the petition, alleged the necessity for the spillway and then alleged that at the time said ditch was created the land upon which it was situated was and still is the property of the Swan Land and Cattle Company, Limited, a corporation, and at all times mentioned the defendant had been in lawful possession of the same as lessee. That said cattle of plaintiff were upon said premises without the consent of the owner thereof or of the defendant and were trespassing thereon at the time they were alleged to have fallen into said ditch. To that defense the plaintiff demurred, and the demurrer being overruled, he elected to stand thereon and...