McLean v. Berkabile
| Decision Date | 04 March 1907 |
| Citation | 100 S.W. 1109,123 Mo.App. 647 |
| Parties | CYRUS McLEAN, Appellant, v. MRS. ANNIE BERKABILE, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. Alexander H. Waller, Judge.
AFFIRMED.
Judgment affirmed.
Webster Gordon for appellant.
Since respondent did not set up or claim any special or general property in the steers in controversy and appellant at the trial was conceded to be the owner thereof and entitled to the possession of same, the trial court erred in refusing to give appellant's peremptory instruction to the jury to find that the plaintiff was the owner of and entitled to the possession of the steers and to one cent damages for the taking and detention thereof. Leete v. Bank, 141 Mo 586; Turner v. Langdon, 85 Mo. 441; Cotton v Huston, 110 Mo.App. 70; Stonebraker v. Ford, 81 Mo. 532; Westbay v. Milligan, 89 Mo.App. 294; Scott v. Riley, 49 Mo.App. 253; Gray v Parker, 38 Mo. 160. (2) As defendant did not recover either of the two steers involved in this case and was not found to have any special property therein on any account, she was not entitled to recover her cost, and the judgment herein for cost in favor of defendant is erroneous on its face. Hecht v. Heimann, 81 Mo.App. 370; R. S. 1899, sec. 1552, 4474; Mohr v. Langan, 162 Mo. 490. (3) The verdict of the jury is erroneous on its face as the finding for the defendant is not a finding of the right of property or the right of possession nor is it a finding of the value of the property or the value of the possession as required by our statutes and reported cases. R. S. 1899, sec. 4473; Dixon v. Atkinson, 86 Mo.App. 24; Hopper v. Hopper, 84 Mo.App. 117; Fulkerson v. Dinkins, 28 Mo.App. 160; Clarkson v. Jenkins, 48 Mo.App. 221; Fowler v. Carr, 55 Mo.App. 145; Young v. Glasscock, 79 Mo. 574. (4) Our statutes as well as the common law in force in this State, require each individual owner of fields and inclosures to inclose them with a lawful fence, whether same is built solely on the owner's land or on the division line between them, and adjoining owners of land, the obligation to fence fields and inclosures and keep the same in repair is just the same. Demetz v. Benton, 35 Mo.App. 559; R. S. 1899, sec. 3294; 12 Am. and Eng. Enc. Law (2 Ed.), p. 1041, note 1043; Gorman v. Railway, 26 Mo. 445; McPheeters v. Railway, 45 Mo. 25; Bradford v. Floyd, 80 Mo. 211; Canefox v. Crenshaw, 24 Mo. 202.
Gillespy & Conley for respondent.
(1) The authorities cited by plaintiff under his first point decide nothing pertinent to the issues in this case. (2) All through the case the court ruled that under the pleadings defendant was not entitled to any affirmative relief but that under her answer she could set up any matter which tended to defeat plaintiff's case and if successful in this, was entitled to her costs. R. S. 1899, sec. 3852; Lewis v. Baker, 24 Mo.App. 682. (3) The action of replevin corresponds to the common law actions of replevin and detinue. There must have been either a wrongful taking and detention or a wrongful detention. Hecht v. Heineman, 81 Mo.App. 373; Feder v. Abrahams, 28 Mo.App. 454; Skinner v. Stouse, 4 Mo. 93. (4) The issue here is non detinet and all that the defendant was entitled to recover was her costs. Walker v. Robertson, 107 Mo.App. 571; Stout v. Fultz, 93 S.W. 919. (5) Instruction numbered 3, complained of by appellant, was given by the court of its own motion and far from being erroneous, more nearly declared the whole law of the case than any other instruction. Growney v. Railroad, 102 Mo.App. 442; O'Riley v. Diss, 41 Mo.App. 184; Gillispie v. Hendren, 98 Mo.App. 622; Jackson v. Fuller, 187 Mo.App. 228; Hughes v. Railroad, 66 Mo. 325; Turner v. Thomas, 71 Mo. 596. (6) Instruction numbered 1, given on behalf of defendant, is a correct statement of the law of what is a division fence. Division fences are dividing fences, separating the lands of adjoining properties, and must be on the boundary line between them. Jefferies v. Burgin, 57 Mo. 327; Sims v. Field, 74 Mo. 39.
This is a replevin action begun before a justice of the peace to recover the possession of two steers. The trial in the circuit court where the cause was taken on appeal resulted in a judgment for defendant from which plaintiff appealed to this court.
Plaintiff and defendant own adjoining farms which are inclosed by continuous outside fences. A fence running east and west separates the farms, but the location thereof with reference to the boundary line is a subject of dispute between the parties. The east half of the fence is owned and maintained by defendant, the west half by plaintiff. The steers which belong to plaintiff and were being kept by him in his pasture entered the land of defendant through the east half of the fence at a place where the same had been suffered by her to remain in a condition of ill repair. In their progress over defendant's land the animals jumped over inside fences and finally reached a garden where they inflicted some damage. Defendant succeeded in driving them thence into an outbuilding where she confined them. She sent plaintiff a message informing him of the occurrence and expressing her belief that the steers belonged to him. A son of plaintiff went to defendant's place and found that defendant's surmise was correct. On that occasion defendant told him he could remove the steers that day without the payment to her of compensation for her expense and trouble and, on his statement that it would be inconvenient for him to remove them before the following morning, it was agreed if he came for them early in the morning no charge would be made by defendant. Late next morning plaintiff went to defendant's place in person and conducted himself in a manner so uncivil and peremptory that, taking offense, defendant refused to surrender the steers on his demand except on condition that he reimburse her, basing her refusal on the ground that plaintiff had not come early in the morning as agreed and thereby she had been subjected to additional expense and trouble in feeding and watering the animals that morning. Plaintiff, further angered at this position of defendant, returned home and that evening went to town and brought this suit. He obtained possession of the property under the writ issued and retained it.
The evidence of plaintiff tends to show that the fence had been built on the boundary line under an agreement between him and defendant's husband, who had died before the occurrence in question, which agreement provided that each party should build and maintain one-half of the fence at his own expense and that the structure should constitute a division fence. Defendant denied all this and her evidence is to the effect that no agreement was made for the building of a division fence and that the fence in controversy was built entirely on her land as one of the interior partitions thereon. Further, she maintains that it was in good condition to turn ordinary cattle and that the invasion of her land was due to the vice of these particular steers, but in this she is not supported by any substantial evidence. The proof shows, beyond contradiction, that the animals passed under the fence where it spanned a ravine, to which they had access from plaintiff's pasture and through which they could reach the other side of the fence without encountering any obstruction.
The common law of England required every man, at his peril, to keep his cattle on his own land and, if they escaped and strayed to the land of another, the owner was liable in trespass for the damages inflicted. In this State at a time in its early history when there was much unoccupied and uninclosed land, this rule was deemed by the Supreme Court to be unsuited to the needs of a sparsely settled country and in its construction of legislation relating to the subject the court held that domestic animals should be allowed to range at will over uninclosed lands and compelled the owners of cultivated fields to fence against such animals if they would escape their depredations. [Gorman v. Railroad, 26 Mo. 441; McPheeters v. Railroad, 45 Mo. 22; Bradford v. Floyd, 80 Mo. 207; Canefox v. Crenshaw, 24 Mo. 199.] But this exception to the common law rule does not apply to the lands of adjoining proprietors that are enclosed by continuous outside fences.
In such cases, where no division fence has been established between the farms, either under the provisions of chapter 28, Revised Statutes 1899, or by the agreement of the parties, the common law rule prevails and each proprietor is required to confine his domestic animals to his own land and is liable to his neighbor for any damages sustained from their escape to the land of the latter. [O'Riley v. Diss, 41 Mo.App. 184; Growney v. Railroad, 102 Mo.App. 442; Gillespie v. Hendren, 98 Mo.App. 622, 73 S.W. 361; Jackson v. Fulton, 87 Mo.App. 228.]
Under the statute, chapter 28, Revised Statutes 1899, either proprietor may compel the establishment and maintenance of a lawful fence and provision is made for...
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