Headen v. Leonard H. Rust.

• Decision Date: 31 January 1866
• Citation: Headen v. Leonard H. Rust., 39 Ill. 186, 1866 WL 4380 (Ill. 1866)
• Parties: JAMES HEADENv.LEONARD H. RUST.
• Court: Illinois Supreme Court

39 Ill. 186

1866 WL 4380 (Ill.)

JAMES HEADEN

v.LEONARD H. RUST.

Supreme Court of Illinois.

January Term, 1866.

WRIT OF ERROR to the Circuit Court of Fulton county; the Hon. CHAUNCEY L. HIGBEE, Judge, presiding. The facts appear in the opinion of the court.

Messrs. JUDD & JAMES, for the plaintiff in error

Mr. S. P. SHOPE, for the defendant in error.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This was an action of trespass, commenced by James Headen, before a justice of the peace, against Leonard H. Rust, to recover damages sustained by the trespass of the hogs of plaintiff in error. On the trial before the justice of the peace, defendant in error recovered a judgment for the sum of seven dollars and fifty cents. The case was removed to the Circuit Court by appeal, and at the September Term, 1864, a trial was had before a jury.

On the trial the plaintiff proved that the defendant's hogs were permitted by the latter to run at large in Fairview township, Fulton county, Illinois, in the fall of 1863, and that during the months of September, October and November, and before the commencement of this suit, defendant's hogs, at different times, got into the plaintiff's corn field in Fulton county, Illinois, and destroyed twenty-five dollars' worth of corn; that the corn field was inclosed by a fence, and was part of plaintiff's farm. Plaintiff also introduced evidence tending to show that his fence, inclosing the field of corn, was a good and sufficient fence to turn hogs and other stock not breachy. The defendant, on his part, introduced evidence tending to show that the fence inclosing the field on the north and west sides, was not good and sufficient to turn hogs not breachy, but that the field was so badly fenced that hogs not breachy could get in and out at a number of places. And this was all the evidence offered in the case by either party.

Whereupon the plaintiff asked the court to instruct the jury as follows:

“That if the jury believe from the evidence in the case that the defendant's hogs went into the plaintiff's inclosure and did damage to his crop of corn, they will find a verdict for the plaintiff and assess his damages at the amount they may find from the evidence that injury actually was done; and it matters not what was the condition of the plaintiff's fence, so far as his right to recover some damages is concerned, if the evidence shows that he sustained damages by said hogs injuring his crop, inasmuch as the owner of the field is and was not obliged to keep up a good and sufficient fence around his field to keep out his neighbor's hogs; but the owners of hogs permit them to run at large at their peril.”

But the defendant objected to the giving of this instruction, and the court sustained the objection and refused to give the same to the jury, to which refusal the plaintiff excepted.

The defendant then asked the court to instruct the jury as follows:

“1. The rule of the common law requiring the owner of cattle, hogs, etc., to keep them upon his own ground, or else to respond for whatever damage they may do to another's crops, does not prevail in this State.

2. In order to maintain an action for the trespass of hogs upon one's inclosure whereby damage is sustained, the owner of the inclosure is bound to surround it by a good and sufficient fence; and if the jury believe from the evidence that the plaintiff's field of corn, to which defendant's hogs did damage, was not inclosed by a good and sufficient fence to turn hogs not breachy, then they will find for the defendant.”

To the giving of which instructions the plaintiff objected; but the court overruled the objection and gave such instructions so asked by defendant to the jury, to all which the plaintiff then and there excepted.

The jury, after retiring to consider, returned a verdict for the defendant. The plaintiff then moved the court for a new trial for the following reasons, viz.:

“1. The court erred in refusing to give the jury the instruction asked by the plaintiff. 2. The court erred in giving the jury the instructions asked by the defendant.”

But the court overruled the motion for a new trial and rendered judgment against the plaintiff for costs; to all which the plaintiff then and there excepted. The case is brought to this court by the plaintiff below by writ of error, and the following errors assigned, viz.:

“1. The court below erred in refusing to give the jury the instruction asked by the plaintiff.

2. The Circuit Court erred in giving to the jury the instructions asked by the defendant.

3. The court below erred in overruling the plaintiff's motion for a new trial.”

Plaintiff in error, on this record, presents the question whether the rule announced in the case of Seeley v. Peters, 5 Gilm. 130, is the law of this State. He contends that, while that case has not in terms been overruled by subsequent adjudications, the rule has been changed and in effect overruled. That case was decided in 1848, and has, during all the time since, been regarded and acted upon by the people as the law of the land. Nor has the question until this time ever been directly presented, asking to have the decision reviewed by this court. The legislature has also, by numerous enactments, clearly manifested that they regarded the rule there announced as the law of this State.

At the session of 1851, the general assembly adopted the law regulating township organization, and by article three, section four, declares that the voters of the towns, at their annual meetings, may determine the number of pound masters and the locality of pounds. To make rules and regulations for ascertaining the sufficiency of all fences in such towns, and for impounding cattle. To determine the time and manner in which cattle, horses, mules, asses, hogs, sheep or goats shall be permitted to run at large. These provisions recognize the rule as announced in Seeley v. Peters, as they recognize the duty to fence against stock, and authorize the voters to adopt all rules necessary to ascertain the sufficiency of all fences in the town. If owners were not required by law to fence their lands against stock, why confer the power to ascertain whether fences were sufficient? If owners were not required to fence against stock, why should the public feel any concern about fences? Again, if the general assembly did not recognize the rule, how can we account for their conferring the power to determine the time and manner in which stock should be permitted to run at large. If they had supposed that stock were by the existing laws prohibited from running at large, and had designed to change the law, it seems at least probable, that they would have simply conferred power to permit them to do so, under such restrictions as the voters might impose, but they seem to have authorized the voters to restrict the right already existing instead of authorizing them to confer a power not already existing. This enactment still remains in force, but amended by the act of the 20th of February, 1861 (Sess. Laws, 221), so as to give them the power “to determine what shall be a lawful fence within such town.”

At the session of 1853 (Sess. Laws, 152), the general assembly declared that in the counties of Henry, Will, Livingston and Lake, any person or persons after the first day of the succeeding month of March, who should be the owner of, and permit any sheep, hog or hogs, shoat or shoats, pig or pigs, to run at large should, on conviction be fined five dollars for each head so running at large. On the 12th day of February, at the same session, a similar act was passed, applying to Du Page county. On the 18th day of February, 1857, a similar law was adopted for Mercer county. And, on the 10th day of February, 1859, a law was passed prohibiting sheep and swine from running at large in the counties of Mercer and Rock Island, under a penalty of two dollars. This latter act repealed the former act relating to Mercer county. At the same session an act was passed declaring the Illinois river, after its junction with the rivers Des Plaines and Kankakee, through Grundy county, to the west side thereof, a lawful fence; and it provides that any animal or animals crossing the river between those points,...