Haack v. Rodenbour

• Decision Date: 08 February 1944
• Docket Number: 46397.
• Parties: HAACK v. RODENBOUR.
• Court: Iowa Supreme Court

12 N.W.2d 861

234 Iowa 368

HAACK v. RODENBOUR.

No. 46397.

Supreme Court of Iowa

February 8, 1944

Burton Parriott, of Remsen, for appellant.

E P. Murray, of Le Mars, for appellee.

MANTZ Justice.

This is a law action in replevin in which the plaintiff, Roy Haack, brought suit against the defendant, John Rodenbour, Jr., alleging ownership and right to the immediate possession of a certain bull which he claimed was held by the defendant without lawful or legal right. In his petition plaintiff demands immediate possession of such bull, or the value thereof, if the same cannot be found, and also damages for its illegal and wrongful detention.

Defendant denied the claims of plaintiff and alleged that said bull came upon his premises as a trespasser; that while thereon said bull attacked and killed a bull belonging to the defendant and thereby damaged him in the sum of $200, which damages have not been paid. That under the law he distrained the bull until his damages were paid and averred that he gave notice of his claim of damages to the owner of the bull and to the township trustees as provided by law. Defendant alleged that by reason thereof the claim of the plaintiff to the right to the possession of such bull is without merit. A writ of replevin was issued and the distrained bull was taken from the possession of the defendant.

The jury was waived and the cause was tried to the court and the court denied the claim of plaintiff and entered judgment against the plaintiff and the surety on the replevin bond with interest and costs in favor of the defendant herein. Plaintiff has appealed from such judgment.

This is a law action and the waiving of the jury and the submission of the issues to the court give the finding of that tribunal the force and effect of a jury verdict. The case is not triable de novo here but is triable upon errors assigned. In this appeal we are not to lose sight of the rule that the court will not consider here errors not urged in the court below.

There is little dispute as to the principal facts. Both parties are farmers and live on adjoining farms, the appellant being a tenant. Separating the two farms is a division or partition fence. At the time this controversy arose this fence was a good substantial fence and there has been no claim made by either party that it did not meet the statutory requirements of a lawful fence. On March 9, 1942, appellee had a herd of cattle in the field just east of the partition fence and among this herd was a bull owned by appellee. This bull was the only one owned by the appellee. About noon of that day appellee found among his cattle in a feed lot adjacent to the field an animal known to the record as the "Haack" bull. This bull had marks on his head and body from which it could be readily inferred that he had been fighting recently. The bull of appellee was missing and upon search was found dead in appellee's field about 20 feet from the partition fence. Appellee had seen his bull alive about three hours prior to the time he was found dead. The wires of the division fence near the point where the bull was found were broken and the ground was trampled and disturbed. The dead bull had cuts and bruises and other marks on his body and when found some of these cuts were bleeding. The general appearance of the bull and the ground indicated that the animal had been in a recent fight. There was no other bull on the premises at the time the dead bull was found save the Haack bull. The Haack bull had been seen earlier in the day in the field adjoining the one where appellee's cattle had been running. There can be little doubt from the record that the bull of the appellee was killed in a fight with the Haack bull. Appellee was of the opinion that the trespassing bull, that is, the one found on his premises on March 9 1942, was owned by John Haack, a resident of the neighborhood and the father of the appellant. Following the discovery of the dead bull and the presence of the Haack bull on his premises, appellee at once and on the same day went to the home of John Haack and told him of the situation and said "Your bull killed mine." Haack responded, "That's too bad." They then went to the premises of appellee and examined the dead bull and the surroundings and saw the Haack bull. John Haack then said, "I might as well take mine home." To which appellee responded, "No, you are going to settle first." Haack then asked, "You expect me to pay?" Appellee said, "Yes. Is this your bull?" Haack answered, "Yes; I will give you $100." Appellee advised Haack that he would not settle for that sum and also that he intended to hold the trespassing bull until his damages were paid. John Haack said nothing to appellee about not owning the bull. Up to that time appellee had not talked to appellant about his claim for damages.

Following the visit of John Haack to the premises of appellee, appellant petitioned for a writ of replevin and tendered a bond with his father as surety thereon. A writ was issued and under it the trespassing bull was taken from the custody of appellee. Some weeks following this the Haack bull was sold on the market for $212. This bull was over five years old, was white faced and weighed about 1900 lbs. The day following the damage appellee notified the township trustees of his claim for damages and requested them to fix the amount thereof. They came to his premises on March 10, 1942, viewed the dead bull and the fence and then went to see John Haack about the matter. Appellant was not present. John Haack did not advise the trustees that he was not the owner of the bull. The trustees tried to effect a settlement of appellee's claim for damages but failed and did nothing further in the matter. The evidence does show that the father advised appellant as to the matter of the claim of damages which appellee was making. In fact John Haack, as a witness, stated that he was representing appellant in the matter. The evidence shows that the appellant saw the dead bull on the premises of appellee.

Appellant in his petition claimed to be the owner of the bull sought to be replevined and as such entitled to the immediate possession thereof, that the bull had a value of $200 and that the defendant (appellee) wrongfully detained possession from the plaintiff (appellant).

The appellant had the burden of showing that he had the right to the possession of the bull held by appellee at the time he petitioned for the writ of replevin. This proposition is so elementary and well established that we deem it unnecessary to cite authorities so holding. If the appellant failed to sustain his claim so made he cannot prevail herein.

It will be noted that appellant in addition to pleading right to possession also pleaded that appellee was wrongfully detaining the bull. Appellee denied these claims and alleged that his distraint was lawful. Under the issues raised by the petition of plaintiff the lower court denied appellant the relief sought. The question of the burden of proof in replevin cases has caused the courts some difficulty. In the case of Banks v. Lohmeier, 188 Iowa 722, 176 N.W. 789, 790, the plaintiff brought action to replevin two cows which had been upon the public highway and were taken up and distrained by an adjoining land owner under the claim that they were trespassing or running at large in violation of the statute. That case in effect holds that ownership appearing, a presumption arises that such owner is entitled to the possession and that the burden is then upon the party imposing distraint to affirmatively establish the facts making such distraint legal. In that case, as in the present case, there was an allegation of the party asking for the writ stating the alleged cause of the distraint. This court in passing upon the question as to whether such allegation (alleged cause of distraint) made an issue therein, held: "It does not make an issue, and does not require the plaintiff to negative the alleged cause of detention." It further holds that such allegation is a formal averment and only made necessary by statute.

While there is considerable difference in the facts in the cited case and the one at bar, yet we think that the holding in the cited case as to the burden of proof is here controlling. In passing we simply call attention to the fact that in the instant case appellant pleaded that appellee's possession of the bull was wrongful, while in the Banks case there was no such claim pleaded.

In passing upon the claims of appellant, attention is called to Chapter 146 of the Code of Iowa, 1939, dealing with estrays and trespassing animals. Section 2980 is as follows:

"Restraint of animals. All animals shall be restrained by the owners thereof from running at large.

Section 2981. "Trespass on lawfully fenced land. Any animal trespassing upon land, fenced as provided by law, may be distrained by the owner of such land, and held for all damages done thereon by it, unless it escaped from the adjoining land in consequence of the neglect of such land owner to maintain his part of a lawful partition fence."

The Haack bull was found upon the premises of appellee on March 9, 1942. A short time prior thereto he had been seen on the premises of the appellant. There is no direct evidence as to how such bull got upon the premises of the appellee. True there were some broken wires in the fence close to where the dead bull was found and it might be inferred that he entered the field of appellee at that point. However that may be, it is clear that under the evidence the Haack bull when found on the premises of the appellee was a trespasser within the meaning of the law. Burleigh & Jackson v. Hines, 124 Iowa 199, 99 N.W. 723, Wheeler v. Woods, 205 Iowa 1240, 219 N.W. 407.

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