Kimple v. Schafer
| Decision Date | 24 October 1913 |
| Citation | 143 N.W. 505,161 Iowa 659 |
| Parties | LEMUEL KIMPLE, Appellee, v. PHILLIP SCHAFER and MYRTLE SCHAFER, Appellants |
| Court | Iowa Supreme Court |
Appeal from Wayne District Court.--HON. THOMAS L. MAXWELL, Judge.
SUIT in equity to compel defendants to restrain and control their chickens, so as to prevent them from trespassing upon plaintiff's land. The trial court granted the relief prayed, and defendants appeal.--Reversed.
Reversed and Remanded.
Postun & Murrow, for appellants.
Miles & Steele, for appellee.
OPINION
Plaintiff and defendants own and occupy adjoining farms, separated only by a public highway. Defendants' dwelling house and improvements are on this highway. Immediately east and across the road is plaintiff's land, and in the year 1911 he had sown a part of it in oats. At that time, defendants kept a large number (something like 200) of chickens about their yards and premises, and these were permitted to run at large not only upon their own land, but also upon the public highway. Plaintiff alleges, and the testimony tends to show, that quite a number of these fowls went upon plaintiff's land which he had seeded to oats and ate a large amount of the seed, which plaintiff had planted, to such an extent as to cause him to resow a part of the land; not only once, but twice or thrice. He also alleged that notwithstanding his crop was deficient and badly injured. He further averred that he requested defendants to restrain their chickens and keep them off his land, but that they refused to do so and stated that they did not intend to make any efforts in that direction. He brought this action for a mandatory injunction to compel defendants to restrain and keep their fowls from trespassing upon his land. After a trial upon the merits, the lower court granted the relief asked, permanently enjoining defendants from permitting or allowing any chickens or poultry owned or controlled by them from going on plaintiff's premises. Defendants appeal from this decree.
This appeal involves the duties of an owner of, what Milton styles, the "tame villatic fowl," or in common parlance the "Iowa hen." Plaintiff says that the owner must clip her wings or otherwise imprison and keep her upon his own domain; and that she has no right to take even her daily dust bath upon the country highway, or to stubbornly cross the roads in front of a rapidly approaching vehicle. On the other hand, defendants say that outside of cities and towns chickens are free commoners, and that an owner of improved or cultivated land must fence against them. They also assert that plaintiff has no remedy, because his land is not inclosed by a lawful fence and for the further reason that, if he has a remedy, it is to impound the trespassing animals, or to sue at law for the damages done, and that in no event is plaintiff entitled to any relief because his hands are foul in that he, too, owns chickens which he permits to roam at will. The questions thus presented are really serious in character, for the poultry industry is an important one in this state and it is of vital importance to know whether the owner must restrain his fowls, or an adjoining owner of improved and cultivated land must fence against them.
I. Whatever the decision, some hardship must result; and it is well, perhaps, that the question is presented at this time in order that the law may be settled. Strange as it may seem, there appears to be no decision exactly in point. The nearest approach to it is our own case of Keil v. Wright, 135 Iowa 383, 112 N.W. 633, also reported in 13 L.R.A. 184. The diligent annotators of that series of selected cases found no other upon the proposition involved. The case is also reported in 14 A. & E. Ann. Cas. 549, but the industrious editors of that series found nothing theretofore reported directly in point. Upon one proposition the case is important and decisive of one of the questions raised on this appeal. It squarely decides that a permanent injunction will lie to restrain domestic animals from trespassing upon the lands of another, and this rule seems to have support in Ellis v. Forest Ass'n, 69 N.H. 385 (41 A. 856, 42 L. R. A. 570); Musselshell Co. v. Woolfolk, 34 Mont. 126 (85 P. 874); Strawberry Co. v. Chipman, 13 Utah 454 (45 P. 348); Tantlinger v. Sullivan, 80 Iowa 218, 45 N.W. 765, Martin v. Sheep Co., 12 Wyo. 432 (76 P. 571, 78 P. 1093). Contra: Jerome v. Ross, 7 Johns. Ch. 315, 11 Am. Dec. 484 (opinion by Chancellor Kent); Catching v. Terrell, 10 Ga. 576.
II. It is conceded that, at common law, owners of domestic animals were required to keep them within their own close, and if they failed to do so, they were liable in trespass, and this rule had special application to adjoining landowners, unless there was some agreement between them, either express or implied, to the contrary. But Blackstone says that this rule did not apply to dogs, cats, rabbits, and all animals feroe naturoe. 3 Black. Com. 7. It has been held, however, at common law that trespassing chickens could be impounded. State v. Neal, 120 N.C. 613 (27 S.E. 81, 58 Am. St. Rep. 810). In a very early English case, it seems to have been held that greyhounds or ferrets chasing and killing rabbits in a warren might be distrained damage feasant. 1 Year Book, 1 Edw. II, 18, pl. 2. See, also, Boden v. Roscoe, 1 QB 608; Bunch v. Kennington, 1 QB 679 (41 E.C.L. 726). But see Brown v. Giles, 12 E.C.L. 79; Woolf v. Chalker, 31 Conn. 121 (81 Am. Dec. 175). This rule of the common law, requiring an owner to keep and restrain domestic animals upon his own premises, has been held inapplicable to the habits and conditions of the people in many of our states, especially Western and Middle Western ones. See Mobile v. Williams, 53 Ala. 595; Little Rock v. Finley, 37 Ark. 562; Cincinnati R. Co. v. Waterson, 4 Ohio St. 424; Pace v. Potter, 85 Tex. 473 (22 S.W. 300); Merritt v. Hill, 104 Cal. 184 (37 P. 893); Gorman v. Railroad Co., 26 Mo. 441 (72 Am. Dec. 220); Chase v. Chase, 15 Nev. 259; Nuckolls v. Gaut, 12 Colo. 361 (21 P. 41). At a very early day we adopted this rule, and it has been adhered to ever since, save as the Legislature has made provision to the contrary. Wagner v. Bissell, 3 Iowa 396; Syford v. Shriver, 61 Iowa 155, 16 N.W. 56; Hallock v. Hughes, 42 Iowa 516; Little v. McGuire, 38 Iowa 560; s. c., 43 Iowa 447; Harrison v. Adamson, 76 Iowa 337; Frazier v. Nortinus, 34 Iowa 82; Russell v. Hanley, 20 Iowa 219; Alger v. Railroad Co., 10 Iowa 268.
The Legislature has authority to change this rule, and it has done so in this state as to many kinds of domestic animals but, as to chickens, the only provision we find in the statutes is one giving to cities and towns the right to restrain and regulate the running at large of swine, sheep, and fowls within the limits of a corporation and authorizing the distraint and impounding thereof. See Code, section 706. The other provisions found in chapter 3 of title 12 of the Code have no reference to poultry. Section 2311, in giving a definition of trespassing animals, says that it means those unlawfully upon land or running at large, contrary to law or police regulations. By no stretch of the imagination may any of the sections found in this chapter be held to refer to chickens. These provisions of the Code are significant in that the only attempt made by the Legislature to regulate the running at large of poultry, turkeys, chickens, ducks, geese, guinea hens or other fowls coming under that designation, refers only to cities or towns, thus indicating that in the country districts such animals are free commoners, and he who would be protected from their ravages must fence or protect his land against them. We should not shut our eyes to the fact that from the very beginning of the state, even in its territorial stage, chickens have been what may properly be described as free commoners. Save for purposes of breeding, it has never been the custom in rural districts for the owner to restrain his chickens. They, with turkeys,...
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