Taylor v. Welbey

36 Wis. 42

Opinion

Lyon, J.

The single question to be determined is, whether cattle pasturing 'in the public highway may lawfully be dis-trained damage feasant by the owner of the fee of such highway. We are of the opinion that they cannot, unless by virtue of some valid municipal by-law or ordinance.

A by-law of the town in which the defendant’s cattle were distrained, prohibiting cattle from running at large in the highways therein, was read in evidence; but it only inflicts a money penalty upon the owner of cattle violating the by-law, and does not attempt to give the remedy of distress. Such bylaw, therefore, does not aid the plaintiff.

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Neither can the distress be justified by the statute on that subject, for that limits the right to the distraining of beasts doing damage within the inclosure of the distrainor. Tay. Stats., 793, § 1. By the term “ inclosure," as used in the statute, is meant a tract of land surrounded by an actual fence, and such fence. Pettit v. May, 84 Wis., 666; Bouvier’s Law Dic., title “ Enclosure.”

But, although the validity of the distress cannot he maintained under the statute or the town by-law, it is claimed to be a valid distress at the common law. There are two answers to this position, either of which is fatal to it. 1. The statute is a complete revision or codification of the whole law of distress damage feasant, and takes the place of all former laws on the subject. 2. Cattle doing damage in the highway were not distrainable at common law, or, at least, have not been dis-trainable since the statute of Marlborough was enacted, A. D. 1267 (52 Henry III). Cap. XV of that statute is as follows: “ It shall be lawful for no man from henceforth, for any manner of cause, to take distresses out of his fee, nor in the King’s highway, rior in the common street, but only to the King or his officers having special authority to do the same.” 1 Statutes at Large, 36.

We find no legal authority for the distress, and the defend-1 ant had the right peaceably to reclaim his cattle from the possession and custody of the plaintiff; and whether he reclaimed them peaceably or forcibly, the plaintiff has no such special property in,- or right to the possession of, the cattle, as will) support an action of replevin for them against the owner.

We think the county judge properly directed the jury to find for the defendant, and that the judgment of the county court should be affirmed.

By the Court. — Judgment affirmed.

The folio-wing is the by-law, as found in the printed case: “All domestic animals shall be restrained from going at large in the town of Omro; and any person owning and permitting any domestic animals to run at large in any of the highways of the town, shall be liable to and shall forfeit the sum of two dollars for each and every offense, to be recovered before any justice of the peace in the county; one-half of said penalty shall go to the complainant and driver to the pound, of such animals as are found in the highway contrary to the provisions of this resolution.” — Rep.