Willard v. Mathesus

• Decision Date: 04 December 1883
• Citation: 1 P. 690,7 Colo. 76
• Parties: FRANK G. WILLARD v. CAROLINE MATHESUS.
• Court: Colorado Supreme Court

1 P. 690

7 Colo. 76

FRANK G. WILLARD v. CAROLINE MATHESUS.

Supreme Court of Colorado

December 4, 1883

Appeal from county court of Elbert county.

Wells, Smith & Macon, for appellant.

R A. Long, for appellee.

HELM J.

Appellee was the owner of a quarter section of patented land. Forty acres of this land were inclosed by a pole and slab fence which, according to the evidence, was probably sufficient to protect appellee's crops from cattle and horses running at large, but it was no protection against sheep, as they could pass through it almost anywhere without injury either to themselves or to the fence. Appellant's flocks, while in charge of herders, strayed upon appellee's lands through her said fence, and damaged her hay crop. She brought suit. The cause was tried on appeal by the county court, without the intervention of a jury, and judgment rendered in her favor for the sum of $50 damages. From that judgment this appeal is taken.

Several years before these alleged trespasses occurred, our legislature adopted what is known as the fence law. In this act they specify what shall be a lawful fence, and provide that any person suffering injury to his crops by the trespass of animals may recover damages for such injury, provided the crop be surrounded by such a fence as is therein described. But the statute was not to take effect or be in force in any county until the people of such county adopted the same by a popular vote. Nothing appears in the record of this case showing the adoption of the fence law by the people of Elbert county. We must therefore presume that it has never taken effect therein, and determine the rights of the parties to this action by the general law prevailing in Colorado in the absence of statute. Morris v. Fraker, 5 Colo. 425. Under the old common law 'every one was bound to keep his beasts within his own close, and if they went upon the grounds of another the owner was liable in damages, unless he could show that the lands trespassed upon should have been fenced, either by prescription, agreement, or assignment.'

In the case of Morris v. Fraker, supra, this court declared that the above common-law rule, in so far as it refers to cattle running at large upon the range, is inapplicable to Colorado, and therefore does not prevail; that, on the contrary, 'the general law of the state permits the owners of cattle to allow them to range at will; and that, in the absence of local acts, the owners of crops can only recover for damages done thereto by the trespasses of cattle when the same are at the time of the trespass inclosed by good and sufficient fences.' 5 Colo. 433.

The owner of cattle in this state relies almost entirely upon his recorded brand and upon the annual round-up for identification thereof and protection from loss. Except in a few isolated instances such stock is never either in summer or winter, confined to an inclosed area, or kept close herded upon the range. And the conclusion arrived at in the opinion above mentioned is based largely...