Blizzard v. Walker

32 Ind. 437

• Court: Indiana Supreme Court
• Decided: November 15, 1869
• Status: Published

Opinion

Ray, J.

The cattle of the appellee trespassed upon the land of the appellant and damaged crops thereon. Appellant seized the cattle and refused to deliver them -up until the damages were paid. This action was replevin, by appellee, and he succeeded below. It was proved on the trial that the fence around appellant’s land was not a “ lawful fence” within the provision of the first and second sections of an act “ concerning inclosures, trespassing animals, and partition fences ” (1 G-. & H. 342), and, therefore, under the fourteenth section of the act, the finding and judgment of the-court was correct. This act is intended to supersede the rule of common law on this subject

M. Jones, J. L. Miller,. and S. T'.. Stallard, for appellant. G. O. A. O. JBehm and If. Pi DeHart, for appellee-.

It was attempted to prove that although, the inelosure was not such as “ good husbandmen generally keep,”' yet it was-such as was kept in that locality, where fences were taken in during the winter to avoid the spring-freshets. Ourstatute, unfortunately, is general, and not, perhaps, adapted to this custom.

Judgment affirmed, with costs.