Clarendon Land Co. v. McClelland Bros. , 89 Tex. 483 ( 1896 )

Counsel for defendants in error have entered a vigorous and earnest protest against the conclusions announced by this court, in our opinion heretofore rendered in this case, and on account of the importance of the questions involved we have given more than usual time to a mature and thorough reconsideration of the opinion heretofore delivered, upon the points objected to in motion for rehearing.

Counsel announces that the rule laid down by this court will operate disastrously to certain portions of the State and to certain interests involved therein or affected thereby. The law upon this subject applies to all portions of the State alike and to all interests of the different classes of citizens, whether they be in one part or another of its territory. It has been held that the law of this State upon the subject of lawful fences does not apply to lands used for pasture purposes, but this does not make a distinction between agricultural lands located in the Panhandle or other grazing portions of the State and like lands located in the agricultural sections. If land be used in the grazing districts for agricultural purposes it must be enclosed by a fence such as is prescribed by the statute in order to enable the owner to recover damages for trespass committed by cattle or horses belonging to other persons. Likewise if lands in the agricultural section of the State be used for pasture purposes the rights of the owner must be governed by the same rule as the rights of like owners of land used for like purposes in any other part of the State. The courts cannot limit the operation of any decision announced to any particular district or country. It is within the power of the Legislature to so adjust the laws as to give them local effect upon these questions, and, if the law as it exists is inapplicable to any particular section, then the Legislature has the authority to so change the law as to adapt it to the best interests of the people living in such section, and we presume that it will be done whenever the necessity arises.

It is claimed on the part of the defendants in error that the charges asked by the plaintiff in error in the court below and refused by the trial judge embrace substantially the same proposition as those given by the court in its general charge to the jury. This is true as to some portions of the charge, but not as to others, and upon careful examination of those charges, we do not think that it can be properly said that the errors for which this judgment has been reversed can be attributed to the action of the defendant. The charge given by the judge who tried the case in the District Court is admirably framed to express his view of the law applicable to the facts, but we believe that the view presented by the charge of the court is not correct and that the error resulted from a misconception of the opinion delivered in this case when it was before this court at a former term. It is claimed that the opinion of the court as last rendered is in conflict with the opinion delivered upon a former hearing, but upon examination of both opinions we do not think that this criticism is justified. We will not, however, enter into a discussion of that matter on this motion.

It is claimed that the opinion now under review is erroneous in announcing these propositions:

First. "If plaintiffs' fence was sufficient to turn cattle of ordinary disposition and defendant's cattle were to an extent more than usual with such stock disposed to break through fences, if this was known to the defendant or its servants, and by reason of that disposition the cattle broke into plaintiffs' enclosure, defendant would be liable for such damage as would usually arise from such trespass, and if the defendant's cattle so entering were liable to impart to others a disease by contact and association with them and defendant knew this or had good reason to believe it true, then it would be liable for the effects of such disease, if communicated by its cattle entering the pasture under the circumstances stated. If, however, the defendant did not know of the vicious or fence-breaking character of its cattle and had no knowledge of circumstances sufficient to charge it with notice thereof, it would not be liable for damages occasioned by such an entry upon plaintiffs' land."

Second. "If the defendant knew that its cattle were unusually disposed to break fences, but did not know and had no good reason to believe that they were liable to impart disease to others, it would not be liable for the effect of such disease actually imparted to the plaintiffs' cattle by such a breaking of their fence."

As it has been before held by this court, the common law upon the subject under consideration is not in force in this State, and therefore the rules of law applied in determining the liability of the owner of stock for trespasses are inapplicable in this State. The common law rule is clearly stated by Shearman and Redfield on the Law of Negligence, section 627, as follows: "The owner of large animals (such as horses, oxen, sheep, etc.) is under an unqualified obligation at common law to restrain them from trespassing upon lands of other persons, and he is therefore unconditionally liable as a trespasser himself for any trespass committed by his animate property. The law conclusively presumes negligence against him without regard to the facts of the particular case. Whatever damage his animal does while trespassing is an aggravation of the trespass for which he is also liable." Thus the failure to perform the duty of restraining horses, cattle or sheep by the owner, under the common law, constituted upon his part negligence which, in contemplation of law, made him a trespasser by reason of the act of such stock in entering upon the lands of another. The liability is placed distinctly upon the ground that the negligence is conclusively presumed from a failure to obey the requirements of the law.

In this State the rule is reversed and the burden rests upon the land owner to exclude from his land the stock of other persons by throwing around such land a fence sufficient to prevent entry thereon by all such stock not of a fence-breaking or vicious disposition. In the opinion delivered by Chief Justice Gaines on a former hearing it is said: "It is a right of every owner of domestic animals in this State, not known to be diseased, vicious or breachy, to allow them to run at large, and this without reference to the size or class of such animals kept by others in the same neighborhood. * * * If the agents of the defendant corporation knew that their calves could pass through the plaintiffs' enclosure and that they were likely to communicate disease to the latter's cattle, it was negligence on his part not to confine them, and for the consequences of that negligence it would be liable." Again in the same opinion it is said: "We do not hold that for no breach of its fence and invasion of its pasture by domestic animals could a land owner recover under our law. It may be admitted that if his enclosure be sufficient to exclude all cattle of an ordinary disposition he would have the right to recover for the trespass of such as were peculiarly vicious and prone to break fences. The owner of a dog may as a general rule permit him with impunity to run at large, but if he knows him to be vicious and does not restrain him, he is liable for any injury he may inflict upon the person or property; and it would seem that the same principle should apply to the owner of any domestic animal known to him as being accustomed to break through in ordinary good and sufficient fence."

From these quotations we think that it is clear that the court distinctly held, in its former opinion quoted from, that the owner of cattle had a right to permit them to run at large upon the open range or upon his own enclosed lands, unless they were known to be breachy or fence-breaking, vicious or diseased, and that it was the duty of the land owner to exclude such stock from his land by a sufficient fence for that purpose, and also, if such stock should make an entry into the lands of another enclosed by a fence sufficient to turn ordinary stock, the owner of the stock would be liable for such trespass, if he knew that they were of a disposition to break fences and enter enclosures not common to that class of cattle. The liability upon the stock owner having such notice would be for such damages as that character of animal might be expected to commit by entering upon the land of another, but in the language quoted herein from the opinion on former hearing it is distinctly stated that the liability for the results of disease communicated to the cattle of another would depend upon whether or not the owner of such cattle knew of the existence of the disease, and the liability of its communication by reason of association and contact with others, and this liability is placed upon the ground that it would be negligence in the owner to so keep such stock that they might thus communicate the disease to the stock of his neighbor. The writer of this does not see how it would be possible to express the conclusion in more apt language than that which is used by the Chief Justice of this court, which we have herein quoted.

If the liability for damages rests upon the ground of negligence and that negligence at common law is presumed from a failure to perform the duty of restraint, then, there being no duty of restraint of the animal placed upon the owner by the laws of this State, there can be no negligence in permitting such cattle to run at large or upon the land of their owner, unless knowledge of the character of the stock as to fence-breaking qualities and their condition as to disease, be brought home to the owner, and there being no negligence, liability does not exist. In the opinion now being considered, we stated that a contrary proposition was announced, by Thompson and Shearman Redfield on Negligence. We have examined the cases cited by those authors in support of the text and do not find the proposition asserted well supported by the cases cited.

Herrick v. Gaylor, 65 Ill. 101, and Sangamon Dis. Co. v. Young, 77 Ill. 197, both arose under statutes of that State, and neither of them involves or discusses the question of notice to the owner of the condition or character of the stock committing the trespass. Liability is placed solely upon the ground that the statute was violated in introducing into the State and keeping the animals prohibited by law.

Anderson v. Bucklin, 1 Stra., 192, and Barnum v. VanDusen,16 Conn. 200, are cited by both authors in support of the proposition asserted by them. In the former case the question of notice is not mentioned. The only point discussed in that case being whether or not the plaintiff was entitled to recover the cost of the proceeding. In the latter case the proof of knowledge by the owner of the diseased condition of the stock in question was made upon the trial and the question before the court was whether or not knowledge of that condition should have been alleged in the pleading. This case seems likewise to rest upon a statute of the state of Connecticut and is not authority upon this question.

Becker v. Gammon, 44 Me. 322, which is not cited by either of the authors referred to, comes more nearly determining the question and supporting the proposition contended for by the defendant in error in this case, but in that case the animal which committed the trespass was unlawfully and wrongfully running at large and the case was decided strictly under the common law rule.

Cook v. Waring, 2 Hurl. Colt., 338, supports the opinion heretofore rendered in this case. In that case the question now before the court was thoroughly discussed and decided. It was there held that in order to hold the owner of sheep responsible for the communication by them of disease to others by entering upon the lands of another, it must be shown that the owner of the diseased sheep had knowledge of their diseased condition before the injury occurred.

As before quoted, it is said in the opinion delivered in this case by Chief Justice Gaines: "The owner of a dog may as a general rule permit him with impunity to run at large, but if he knows him to be vicious and does not restrain him he is liable for any injury he may inflict upon person or property." And "it is the right of every owner of domestic animals in this State not known to be diseased, vicious or breachy to allow them to run at large." And it is said that the principle of the common law applicable to the owner of the dog "should apply to the owner of any domestic animal known to him as being accustomed to break through an ordinarily good and sufficient fence." Applying, then, the same doctrine to the owner of the cattle in this instance that would be applied at common law to the owner of a dog, we have as a logical conclusion that the owner of cattle not known to be breachy or vicious may lawfully permit them to run at large and is not liable for trespasses committed by them (except upon lands enclosed with a sufficient fence under the statute) unless he knows that they are breachy and liable to break fences. In case of a statutory fence the owner of the stock would be liable for the ordinary consequence of such trespass.

We find no reason to change our opinion in this case and the motion for rehearing is therefore overruled.

Rehearing refused.