Clear Creek Lumber Co. v. Gossom

44 So. 404, 151 Ala. 450, 1907 Ala. LEXIS 555

Opinion

McCLELLAN, j.

The complaint charges that the defendant “turned his stock or cattle loose or at large, and permitted or caused said stock to go upon said land and injure or destroy” the crops of the plaintiff growing thereon. In this state the owner of domestic animals is not liable for depredations committed by them on growing crops, unless the territory on which the crops are is inclosed in a lawful fence, or, unless the invaded territory is within a district in which the running of stock at large is prohibited by municipal ordinance or legislative act. The general rule is that stock must he fenced out, not in. — Rowe v. Baker, 93 Ala. 242, 8 South. 865; Hurd v. Lacey, 93 Ala. 428, 9 South. 378, 30 Am. St. Rep. 61, and authorities therein cited. This complaint simply avers permitting the stock depredating to run at large, without averring that the crops injured or destroyed were under a lawful fence, or within a stock district. It therefore follows that the demurrers should have been sustained.

The judgment will he reversed and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.