Tate v. Ogg

• Court: Virginia Supreme Court
• Writing for the Court: SPRATLEY
• Citation: Tate v. Ogg, 170 Va. 95, 195 S.E. 496 (1938)
• Decision Date: 10 March 1938
• Parties: TATE. v. OGG.

195 S.E. 496

TATE.

v.OGG.

Supreme Court of Appeals of Virginia.

March 10, 1938.

Appeal from Circuit Court, Louisa County; Alexander T. Browning, Judge.

Suit by Pendleton W. Tate against Lucy Ogg to enjoin defendant from permitting horses, cattle, pigs, and turkeys to trespass upon the lands of plaintiff. From a decree denying relief prayed for, plaintiff appeals.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

L. Cutler May, of Louisa, for appellant.

W. Earle Crank, of Louisa, for appellee.

SPRATLEY, Justice.

The plaintiff, Pendleton W. Tate, on November 19, 1936, filed a suit in equity alleging that the horses, cattle, and pigs, and more especially the turkeys, of the defendant, Lucy Ogg, for many years and with great frequency, had been trespassing upon his lands and destroying his crops; that there was such a threat of continued and future injury therefrom as would cause the plaintiff great and irreparable damage; and that he had no adequate remedy at law. He prayed that an injunction issue restraining the defendant, her agents and employees, from maintaining and permitting the alleged trespasses to continue.

The defendant demurred, and for grounds of her demurrer stated that the plaintiff had an adequate remedy at law for the alleged trespasses of the horses, cattle, and pigs, and as to the alleged trespasses of the turkeys, the complainant had failed to fence his land against domestic fowls as required in Virginia. She also filed her answer, in which she denied the material allegations of the plaintiff's bill, and relied upon the second ground of demurrer.

The trial court heard the evidence ore tenus, and a summary of the evidence is certified in the record.

The trial court, by decree of December 3, 1936, being of the opinion that the alleged trespasses were only of a minor and inconsequential nature, and the damages only trivial, denied the relief prayed for.

The plaintiff, while admitting that the trial court had the right to accept the evidence of the defendant, and to reject that of the plaintiff, contends that the evidence of the defendant alone justified the granting of the injunction.

A large proportion of the briefs of each counsel is taken up with a discussion of the rule of the common law, which requires the owner of animals to keep them on his own land, or within inclosures. Since it was apparent from the evidence that the alleged trespasses by the livestock of the defendant, such as horses, cattle, and pigs, were in reality of such seldom occurrence and trivial nature, the plaintiff in his brief and in his argument practically abandoned any claim to relief from that source. He insists, however, that the evidence does establish such repeated, continuous, and threatened trespasses by theturkeys as to warrant relief therefrom in equity.

The plaintiff contends that turkeys are domestic animals, and that the common-law rule, which requires the owner to keep such animals inclosed, is in force in Louisa county. The defendant argues that the rule is not in force in Louisa county, nor in Virginia, having been changed by statute, and even if it be in force, that the trespasses complained of were infrequent, trivial, and inconsequential.

As a general principle of law, every person is entitled to the exclusive and peaceful enjoyment of his own land, and to redress if such enjoyment shall be wrongfully interrupted by another. This rule applies to acts of trespass by domestic animals, unless some provision of law requires the landowner to actually fence out such animals. When a boundary line has been made by statute a lawful fence as to certain animals, the owner of such animals is liable for damage committed by their acts of trespass.

The books abound with many cases relative to acts of trespass committed by such domestic animals and livestock, as cattle, horses, pigs, sheep, etc, but few relate to domestic poultry.

This is the first time that this court has been called on to pass upon the question of liability for a trespass by chickens, turkeys, or domestic fowls. So far as a diligent search discloses, only three of such cases have reached courts of final resort in the United States. Two of these cases are from Iowa and one from Missouri. Each specifically involves chickens. Keil v. Wright, 1907, 135 Iowa 383, 112 N.W. 633, 13 L.R.A, N.S., 184, 124 Am.St.Rep. 282, 14 Ann.Cas. 549; Kimple v. Schafer, 1913, 161 Iowa 659, 143 N.W. 505, 48 L.R.A., N.S, 179 Ann.Cas. 1916A, 244; Evans v. McLalin et al, 189 Mo.App. 310, 175 S.W. 294.

In the case of Keil v. Wright, supra, the court held that since under general principles a landowner should not be disturbed in the exclusive and peaceful enjoyment of his premises, an injunction would lie to restrain domestic fowls from trespassing upon his property. It was specifically stated in the opinion that the question as to whether or not the common-law rule as to trespass by domestic fowls was in force in Iowa had not been raised at the proper time in the pleadings, and had not, therefore, been considered.

In the second Iowa case of Kimple v. Schafer, supra, the holding in the above case as applicable in Iowa was expressly overruled. The subsequent opinion held that the common-law rule, with reference to trespass of domestic animals, was not, and never had been, in force in Iowa; and that in the great western states where there are vast regions of land, where chickens, turkeys, and poultry are raised on a large scale in the rural communities, an injunction against trespass by them will not be held applicable in the absence of a statute, requiring a contrary conclusion. It appears from the opinion that the Legislature of that state had enacted regulations as to the running at large of many kinds of domestic animals, but none restricting and regulating poultry and fowls, except in cities and towns.

The case of Evans v. McLalin et al, supra, is in agreement with the holding in the second Iowa case. The Missouri court seemed to take considerable pride in the fact that Missouri was the greatest poultry state in the Union. It describes poultry as being "privileged characters, " and, as in the Iowa case, treats them as "free rangers."

We find the case of Poindexter v. May, 98 Va. 143, 34 S.E. 971, 47 L.R.A. 588, most illuminative in setting out an historical review of the common-law rule as to trespass by domestic animals, and the effect of certain changes therein by statute in Virginia. In that case, an injunction was sought to prevent the owner of cattle and horses from turning them out upon the uninclosed land of his adjacent neighbor. The defendant contended that, in the absence of a lawful fence on the said lands, as defined in the Code of Virginia, his horses and cattle had a right to run thereon, and there was no remedy therefor. At the time of that decision in 1900, neither had the landowner erected a lawful fence under the statute, nor had the boundary line of his property been declared a lawful fence under statutory proceedings. The opinion held that while at common law the owner of domestic animals was required, at his own peril, to keep them on his own land, or within inclosures, the rule had been changed in Virginia as to certain animals, including horses and cattle, by legislative action, except in those counties where a "no fence" law had been adopted under the provisions of the Code. The court said, in granting the relief asked for, that the change in the com-mon-law rule did not apply to a willful trespass by domestic animals, and that the owner of cattle and horses, who drives them upon the lands of another, is answerable for whatever damage they do while there. This case is of no value as an authority here, except in setting out a review of the common-law rule and the history and effect of the changes made by statute.

The common-law rule was, in general terms, applicable to domestic animals. Viewed in its broad sense, the word "animal, " in the language of the law, is used in contradistinction to a human being, and signifies an inferior living creature, generally having the power of self-motion. 2 Am.Jur. 689. It may, therefore, be said to include domestic turkeys and poultry.

In Virginia, by Code 1936, § 2, the common law of England is continued in force and effect, except in so far as it may be in conflict with the Bill of Rights and the Constitution, or has been changed by legislation.

A change in the common-law rule in Virginia as to certain animals, is now evidenced by the present chapter on "Enclosures and Trespasses, " Virginia Code 1936, §§ 3538-3562, inclusive.

Code, § 3541, provides for the recovery of damages for trespass by the animals mentioned in section 3548.

Section 3548 makes it unlawful to permit "any horse, mule, cattle, hog, sheep, or goat" to run at large upon lots or lands inclosed by a lawful fence.

Section 3538 provides the definition as to what shall constitute a lawful fence.

Section 3547 provides how the boards of supervisors of counties may adopt the boundary lines of lots or lands as lawful fences.

The plaintiff alleges in his brief that the boundaries of his land in Louisa county had been made a lawful fence in accordance with Code, § 3547. The record, however, is silent on that subject; but in the view that we take of this case, we do not consider that point material here.

...