Boggs, J.
This action of trespass was begun by appellee against appellant before a justice of the peace, to recover for damage done to appellee’s crops by horses and mules of the appellant, and came by appeal into the Circuit Court, where a judgment for §17.85 was rendered against appellant, to reverse which he brings the record to this court.
It was stipulated upon the hearing below, that appellee had no fence about his premises, and that the appellant had his horses and mules in a pasture which was surrounded by a good and sufficient fence, and that without fault or negligence on the part of appellant they escaped from the pasture to an open common adjoining it, and from thence strayed- onto the premises of appellee, and damaged his property in the sum of $17.85.
Aside from these stipulated facts, it appeared in proof that appellant permitted those living west o£ his farm, including appellee, to pass through this pasture when going to and returning from the town of Edinburg, gates having been placed on the fences to enable such persons to pass and repass. These gates had been placed there partly at the request of appellee, and under an agreement which appellant claims relieved him of liability for the damages souglit to be recovered. The only testimony concerning this agreement is that of the appellant, which is as follows :
Question: “You may state what use was made of that gate through which the mules passed.”
Answer: “Well, when I closed up that pasture it closed up the passage for Matthews, and he could not get to Edinburg or east on his place, and when he found my fence he came to me and said : ‘ I don’t want to he shut out. I will take hold and help you put in a gate for the privilege of passing through, there.’ ”
Question : “ Is that the plaintiff in this case ? ”
Answer: “Yes; and he done so, with the understanding that he should watch the gate, and if stock, owing to careless persons, got out, he was to turn them back.”
A large common adjoins the appellant’s pasture on the west, and the premises of appellee adjoin this common on the south and one-fourth of a mile west of the west fence of appellant’s pasture field.
The stock escaped from the pasture in the night time, and came upon the commons, and a portion of them from thence into the field of a witness, Overton, who testifies that he that night chased two of the mules back to the gate of the pasture, which he found open, and drove them into the pasture and shut the gate.
The next morning Overton returned to the gate, but could not tell from the tracks whether the stock had got out through the gate or not. He testified that “ something had been going on at Edinburg,” and that a great many persons passed through the pasture and gates that day and night. He found that morning that two of the rails of the pasture fence called riders had been knocked off near the gate, and afterward on the same day he saw on the premises of the appellee the same two mules he had driven in the night from his premises back into appellant’s pasture.
Appellant urges a reversal of the judgment upon two grounds:
1. That he is not liable for damages done by his stock which escaped, without his fault or negligence, from his pasture, which he had surrounded by a good and sufficient fence.
2. He insists that the proof shows that the stock got out through the gate which had been left open without his fault or negligence, and that appellee, under the agreement concerning the gate, could not recover damages done by stock so escaping.
The appellant’s position upon the first proposition is that the owner of stock, if he has them within a good and sufficient fence, and is guilty of no fault or negligence himself, is not in law liable if the stock escapes and destroys the property of another; that the loss in such case must fall upon the one whose property is destroyed. We think this position is not tenable.
At common law the owner of horses, mules, cattle, etc., was required to beep them on his own land or respond in damages for their trespasses. (The owner, says 3 Blackstone’s Commentaries, 211, is answerable for the trespasses of his stock as of himself.)
Our Supreme Court in Seely v. Peters, S Gilm. 130, declared" that this common law rule requiring the owner to keep his stock in his own field, was not suited to the then condition of our country, nor to the wishes, habits, or desires of our people, and that, as our legislature had by various enactments, such as requiring fields to be inclosed with a good and sufficient fence, “ providing a penalty for driving stock from the range where it usually run,” etc., “authorizing the pasturing of cattle if found at large between November and April,” and other similar acts, manifested clearly that the law-making power did not regard the rule applicable or existing. It was decided that such rule was not in force here, but on the contrary, that the person farming land must protect his crop with a good and sufficient fence against stock which might lawfully run at large. This conclusion was reached by a majority only of the court. Its soundness was vigorously combated by Justice Catón, who argued in a dissenting opinion that the rule in question was of a general nature, and unless it was inapplicable to the character of our political institutions, and to the genius of our form of government and our constitution, was in force in Illinois as a part of the common law until repealed by the legislature.
Afterward in Headen v. Rust, 39 Ill. 191, when the correctness of the holding in the Seely case was directly challenged by counsel, it was said that the interpretation had been so long accepted and acquiesced in by our people, and conformed to by all classes of the community, that no good purpose could be subserved by overruling the decision even if it did not seem the most reasonable and consistent to the rules of construction, and that therefore the court would abstain from discussing the question of whether the conclusion reached was such as would be announced if the question was for the first time before the court. It must, therefore, be conceded that the rule so laid down was'the correct one, and if it be still the rule the position of the appellant is correct. This rule, however, rested solely on the ground that the owner of stock had the right to allow them to roam at large, and having such right the duty of protecting crops by good and sufficient fences, so that stock could not injure them, was cast by law upon the person farming the land. As long as this right existed the rule established by the Seely v. Peters case continued, but if the right be lost, the rule would also cease because the rule was founded alone upon the right.
Thus when township organization was adopted and townships given power to prohibit the running at large of stock, it was held that as to all townships that did so prohibit it, the rule created by the decision in the case of Seely v. Peters ceased to be applicable, and the owners of stock became liable for their trespasses as at the common law. Westgate v. Carr, 43 Ill. 450.
Free access — add to your briefcase to read the full text and ask questions with AI
Boggs, J.
This action of trespass was begun by appellee against appellant before a justice of the peace, to recover for damage done to appellee’s crops by horses and mules of the appellant, and came by appeal into the Circuit Court, where a judgment for §17.85 was rendered against appellant, to reverse which he brings the record to this court.
It was stipulated upon the hearing below, that appellee had no fence about his premises, and that the appellant had his horses and mules in a pasture which was surrounded by a good and sufficient fence, and that without fault or negligence on the part of appellant they escaped from the pasture to an open common adjoining it, and from thence strayed- onto the premises of appellee, and damaged his property in the sum of $17.85.
Aside from these stipulated facts, it appeared in proof that appellant permitted those living west o£ his farm, including appellee, to pass through this pasture when going to and returning from the town of Edinburg, gates having been placed on the fences to enable such persons to pass and repass. These gates had been placed there partly at the request of appellee, and under an agreement which appellant claims relieved him of liability for the damages souglit to be recovered. The only testimony concerning this agreement is that of the appellant, which is as follows :
Question: “You may state what use was made of that gate through which the mules passed.”
Answer: “Well, when I closed up that pasture it closed up the passage for Matthews, and he could not get to Edinburg or east on his place, and when he found my fence he came to me and said : ‘ I don’t want to he shut out. I will take hold and help you put in a gate for the privilege of passing through, there.’ ”
Question : “ Is that the plaintiff in this case ? ”
Answer: “Yes; and he done so, with the understanding that he should watch the gate, and if stock, owing to careless persons, got out, he was to turn them back.”
A large common adjoins the appellant’s pasture on the west, and the premises of appellee adjoin this common on the south and one-fourth of a mile west of the west fence of appellant’s pasture field.
The stock escaped from the pasture in the night time, and came upon the commons, and a portion of them from thence into the field of a witness, Overton, who testifies that he that night chased two of the mules back to the gate of the pasture, which he found open, and drove them into the pasture and shut the gate.
The next morning Overton returned to the gate, but could not tell from the tracks whether the stock had got out through the gate or not. He testified that “ something had been going on at Edinburg,” and that a great many persons passed through the pasture and gates that day and night. He found that morning that two of the rails of the pasture fence called riders had been knocked off near the gate, and afterward on the same day he saw on the premises of the appellee the same two mules he had driven in the night from his premises back into appellant’s pasture.
Appellant urges a reversal of the judgment upon two grounds:
1. That he is not liable for damages done by his stock which escaped, without his fault or negligence, from his pasture, which he had surrounded by a good and sufficient fence.
2. He insists that the proof shows that the stock got out through the gate which had been left open without his fault or negligence, and that appellee, under the agreement concerning the gate, could not recover damages done by stock so escaping.
The appellant’s position upon the first proposition is that the owner of stock, if he has them within a good and sufficient fence, and is guilty of no fault or negligence himself, is not in law liable if the stock escapes and destroys the property of another; that the loss in such case must fall upon the one whose property is destroyed. We think this position is not tenable.
At common law the owner of horses, mules, cattle, etc., was required to beep them on his own land or respond in damages for their trespasses. (The owner, says 3 Blackstone’s Commentaries, 211, is answerable for the trespasses of his stock as of himself.)
Our Supreme Court in Seely v. Peters, S Gilm. 130, declared" that this common law rule requiring the owner to keep his stock in his own field, was not suited to the then condition of our country, nor to the wishes, habits, or desires of our people, and that, as our legislature had by various enactments, such as requiring fields to be inclosed with a good and sufficient fence, “ providing a penalty for driving stock from the range where it usually run,” etc., “authorizing the pasturing of cattle if found at large between November and April,” and other similar acts, manifested clearly that the law-making power did not regard the rule applicable or existing. It was decided that such rule was not in force here, but on the contrary, that the person farming land must protect his crop with a good and sufficient fence against stock which might lawfully run at large. This conclusion was reached by a majority only of the court. Its soundness was vigorously combated by Justice Catón, who argued in a dissenting opinion that the rule in question was of a general nature, and unless it was inapplicable to the character of our political institutions, and to the genius of our form of government and our constitution, was in force in Illinois as a part of the common law until repealed by the legislature.
Afterward in Headen v. Rust, 39 Ill. 191, when the correctness of the holding in the Seely case was directly challenged by counsel, it was said that the interpretation had been so long accepted and acquiesced in by our people, and conformed to by all classes of the community, that no good purpose could be subserved by overruling the decision even if it did not seem the most reasonable and consistent to the rules of construction, and that therefore the court would abstain from discussing the question of whether the conclusion reached was such as would be announced if the question was for the first time before the court. It must, therefore, be conceded that the rule so laid down was'the correct one, and if it be still the rule the position of the appellant is correct. This rule, however, rested solely on the ground that the owner of stock had the right to allow them to roam at large, and having such right the duty of protecting crops by good and sufficient fences, so that stock could not injure them, was cast by law upon the person farming the land. As long as this right existed the rule established by the Seely v. Peters case continued, but if the right be lost, the rule would also cease because the rule was founded alone upon the right.
Thus when township organization was adopted and townships given power to prohibit the running at large of stock, it was held that as to all townships that did so prohibit it, the rule created by the decision in the case of Seely v. Peters ceased to be applicable, and the owners of stock became liable for their trespasses as at the common law. Westgate v. Carr, 43 Ill. 450.
The General Assembly by an act in force July 1, 1874, made it unlawful for stock of the kind in question to run at large, unless under certain exceptions which do not arise in this case, and by its force and effect, in our judgment, the rule announced in the Seely case and other cases resting on it for authority ceased, and the common law rule that every man must keep his stock on his land or be answerable for their trespasses, at once revived.
The Circuit Court therefore properly refused the propositions of law presented by appellant, which declared a contrary doctrine. The appellant in support of his proposition that he can not be held liable unless guilty of some fault or negligence, cites Kinder v. Gillespie, 63 Ill. 88; Collinsville v. Scanlan, 58 Ill. 221, and other cases. When these cases are considered carefully it will be found that the doctrine announced bv them • is, that the owner of stock can not be subject to the infliction of a fine or payment of a mere penalty if his stock escape from his inclosure without his knowledge and he is diligent in endeavoring to recapture them. Upon the question of whether the owner is liable for damage done by the stock to property of another, these cases have no application.
The remaining ground upon which appellant urges a reversal is that appellee, when he found that appellant’s fence had been built, said to him, “ I don’t want to be shut out. I will take hold and help you put in a gate for the privilege of passing through the pasture;” and that he did so, with the understanding that he (appellee) should watch the gate, and if the stock, owing to careless persons, got out, he was to turn them back.
The only reasonable effect to be given to this scant and meager statement of what appellant deems to be an agreement, is that appellee was to, and did, help construct the gates and that he said something from which appellant understood appellee ymuld, if the gates were carelessly left open, turn back in the pasture any stock that escaped.
It would not be reasonable to believe from the little we know of what was said by appellee that he agreed to “ watch ” the gate day and night, and see that the stock did not escape.
If appellee had left the gate open, or had he known that it was open, possibly he ought not be permitted to recover; but there is no proof, or even claim so far as we know, that appellee was guilty of any negligence or fault whatever.
The evidence, it is true, tends to show that the stock got out through an open gate, but many persons had passed through it that day and night, and it would be unreasonable to hold that appellee should answer for the acts of others, who equally with him enjoyed the privilege of going through the pasture.
Moreover, a portion of the injury and damage to appellee was caused by the two mules returned by Overton to the pasture, and they escaped, as the evidence tends most strongly to show, by knocking the riders from the fence, and it is possible they all got out in the same manner.
We think the court properly refused to hold appellee was precluded from recovering damages because of the conversation and understanding testified to by appellant. The judgment must be aifirmed.
Judgment affirmed.