Appeal
from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.
Suit by
Mrs. R.J. Fowler against Rena Griffin. Judgment for
plaintiff, and defendant appeals. Reversed and remanded.
See
also, 81 So. 426; 82 So. 112.
BROWN
P.J.
The
case of Joiner v. Winston, 68 Ala. 129, was an
action of trespass by Winston against Joiner for damages
resulting from the defendant's cattle trespassing upon
the plaintiff's crops, and was grounded upon a special
act of the Legislature, the material provision of which is as
follows:
"An act in relation to fences, the protection of crops
and other property in Sumter and Pickens counties.
"Section 1. Be it enacted by the Senate and House of
Representatives of the state of Alabama in General Assembly
convened, that hereafter the boundary lines of each lot, or
tract of
land in Sumter and Pickens counties, or any
select and designated portion thereof, shall be, and they are
hereby made and constituted a lawful fence, upon the terms
and conditions hereinafter mentioned.
"Sec. 2. Be it further enacted, that it shall not be
lawful for the owner, or manager of any horse, mule, ass
hog, goat, sheep, cattle, or other stock, voluntarily to
permit any such animals or stock to go at large off his or
her own premises; and the owner of any such animals, so
permitted to go at large, shall be liable to any party
injured by such stock to the full amount of the damage
sustained, to be recovered before any court of competent
jurisdiction." (Laws 1866-67, p. 586.)
Section
2 of this act was an adoption of the English common law,
imposing a duty on the owner of domestic animals to restrain
them on his premises, and operated an abrogation of the
common law prevailing in this state in so far as it applied
to Sumter and Pickens counties. The gravamen of the complaint
in that case was "that said defendant, as the owner of
said cattle, voluntarily permitted said cattle to go at large
off of his own premises." The court, construing and
applying the act, said:
"By the common law, every man was bound to keep his
cattle within his own close, and to prevent them from
escaping or straying upon the premises of his neighbor. If
they did escape, going without permission upon the lands of
another, the owner was liable in trespass for the resulting
damages. This rule of the common law is not of force in this
state, being inconsistent with the general statutes in
reference to estrays, inclosures, and trespasses by cattle,
which, in effect, treat lands uninclosed as common pasture,
and require the owner or occupier of lands, seeking
protection from trespasses by cattle running at large, to
inclose against them. N. & C.R.R. Co. v. Peacock, 25
Ala. 229; Smith v. Causey, 22 Ala. 568;
Tankersly v. Wedgworth, 22 Ala. 677; Woodward v.
Purcy, 20 Ala. 279.
"The plain purpose of the special statute on which this
action is founded, entitled 'An act in relation to
fences, the protection of crops and other property in Sumter
and Pickens counties,' approved February 19, 1867 (Pamph.
Acts, 1866-67, p. 586), was the adoption and establishment of
the rule of the common law in the counties named, or such
parts thereof as were designated by the commissioners'
court. By the terms of the statute, whenever any particular
part of the county was designated and subjected to the
operation of the statute, the boundaries thereof, whether
marked by monuments or surrounded by inclosures or not,
became at once, by operation of law, a lawful fence. Whoever
permitted his cattle to go at large off his premises, if they
escaped and strayed on the premises of another within the
designated part or district, became liable for all damages
done by them. The residence of the owner or manager of the
cattle within the designated district is not an element of
the liability. The liability arises because he has suffered
his cattle to go at large and they have passed within the
district, the boundaries of which constitute a lawful fence,
doing damage to the lands of another. ***
"In the enactment of the special statute now under
consideration, the lawmaking power was subjecting particular
localities to a policy and to rules of law inconsistent with
the policy and law prevailing generally within the
state."
The
Code of 1907, § 4251, reads as follows:
"4251 (2115) (1367) (1589) (1285) (1102). Trespass by
Stock through Lawful Fence or in Common Inclosure.--Every
owner of cattle, horses, mules, hogs, sheep, jacks, jennets,
or goats, shall be liable in damages for all injuries and
trespasses committed by such animals by breaking into the
inclosure or grounds of another inclosed by a lawful fence,
or within a stock-law district, or running at large in a
common inclosure within which more persons than one are
cultivating land without the consent of all such persons; and
the person injured shall have a lien on the animal
trespassing for the damages, and for every subsequent
trespass double damages."
It will
be noted that this section does not declare that the
boundaries of such stock-law district shall be a lawful
fence, and makes no attempt to establish the English
common-law rule, as did the act of 1867. On the contrary, it
manifestly recognizes the common-law rule of this state,
protecting the owners of domestic animals in their right of
commons, and the duty of the landowner to fence against them.
Hurd v. Lacy, 93 Ala. 433, 9 So. 378, 30 Am.St.Rep.
61; Clear Creek Lumber Co. v. Gossom, 151 Ala. 450,
44 So. 404; Wilhite v. Speakman, 79 Ala. 400;
Means v. Morgan, 2 Ala.App. 547, 56 So. 759;
Jones v. Duncan, 4 Ala.App. 388, 58 So. 972.
By
reference to the original act of February 26, 1887, the
origin of the italicized portion of section 4251, quoted
above, it seems clear that its purpose was to visit liability
only where the law imposed on the owner of domestic animals
the duty to restrain them on his own premises located in a
stock-law district. For convenience, we quote that act:
"An act to make stock passing from one stock law
district into another, and the owners thereof, liable for
damage.
"Section 1. Be it enacted by the General Assembly of
Alabama, that wherever in the state of Alabama, two or more
districts in which stock of any kind are prohibited from
running at large, lie adjacent to each other and any stock
passes from one of said districts into another, said stock
and owner thereof shall be liable for damages, in every
respect to be enforced in the same manner as if they lived
within the district where the damage is
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