Markin v. Priddy , 40 Kan. 684 ( 1889 )

The opinion of the court was delivered by

HortON, C. J.:

At the time of the alleged damages caused by defendant’s cattle to the plaintiff’s growing corn and grass, the plaintiff’s and the defendant’s farms were inclosed, but there was no partition or other fence between them: that is, there was no fence along the east line of the defendant’s southwest corner — at least, no sufficient fence to turn stock. When the defendant turned his cattle loose in his southwest quarter, 'he knowingly permitted them to go upon the southeast quarter, being the farm of plaintiff, because there was no fence obstructing or preventing them. The outside line fences of the southwest quarter prevented them'from running at large, and naturally, on account of the absence of any fence between the southwest quarter and the southeast quarter, the cattle would wander from one quarter to the other; therefore, the defendant did not let his cattle run at large, because his land was not thrown out in the common. Under these circumstances the plaintiff and defendant, being the owners of adjoining farms, had the same fenced in common.

The contrary view adopted in the original opinion grew out of the declaration of the plaintiff made upon the trial, that the farms were not fenced, or occupied in common. This was a conclusion of law, not a statement of fact; and upon this conclusion the former decision was founded. The evidence, however, shows that as the farms were inclosed by uniting the outside-line fences, in law the farms were fenced in common, and without a partition fence. Even if there was no contract or agreement made between the plaintiff and the defendant by which they were to occupy their farms in common, or fence in common, yet if, as a fact, their farms were inclosed by uniting the outside-line fences, and there was no partition fence between the farms, and each occupied and used his farm in severalty, their farms were fenced in common, as above stated, notwithstanding the legal opinion or conclusion of the plaintiff to the contrary. The facts which he testified to contradicted his conclusion of law; and the facts narrated by a witness are to control, not his legal conclusion thereon.

The case falls within the authority of Baker v. Robbins, 9 Kas. 303; therefore the syllabus and opinion heretofore rendered in this case, 39 Kas. 462, will be corrected in accordance with the views herein expressed.

The judgment of the superior court will be reversed, and the cause remanded with direction to the court to overrule the demurrer to the evidence.

All the Justices concurring.