188 Iowa 722 | Iowa | 1920
Defendant answered -that the cows were running at large, and trespassing upon the highway and upon his property, and that, acting under the statute, he distrained them, and holds under the statute authorizing such dis-traint; that, within 24 hours thereafter, he notified the plaintiff of that fact; that plaintiff refused to pay the damages; that, thereafter, he called the trustees of the township together, and had the damages assessed, and that plaintiff still refuses to pay.
The statute under which defendant justifies his withholding of the property from the plaintiff is Section 2314 of the Code of 1897, which reads:
“Swine, sheep and goats at all times, and, during the time and as required by a police regulation adopted according to law, .stock shall be restrained from running at large. Animals thus prohibited from running at large, when trespassing on land, or a road adjoining thereto, may be dis-trained by the owner of such land, and held for damages done by them, and for the costs provided in this chapter; but stock shall not he considéred as running at large so long as it is upon unimproved lands OA%d under the immediate care and efficient control of the owner, or upon the public roads for travel or driving thereon under lilce care and control
Code Section 2317 provides:
“Within twenty-four hours after an animal has been dis-trained, Sunday not included, the person distraining * * * shall notify the owner of the animal thereof, and, if he fails to satisfy the damages and costs, such person shall within twenty-four hours after such notice to the owner, verbally or in writing, request ffhe township trustees to appear upon the premises to view and assess the damages. When two or more trustees have met, one of them having previously
Code Section 2318 provides the manner of making and prescribing the assessment, and directs the place where the same shall be filed and recorded, and further provides that the person aggrieved by the action of the trustees may appeal to the district court of the county.
This cause was submitted on a stipulation of facts. Among the facts conceded, we find that the plaintiff, at the time this action was commenced, was the owner of the property in controversy. The fact of ownership draws with it the right of possession. If nothing further appeared, the law raises the presumption that plaintiff is entitled to the possession of it, as against the world. As said in Cassel v. Western Stage Co., 12 Iowa 47, which was an action in re-plevin :
“Title to personal property ordinarily carries with it the right to the possession. And yet it is true that the title may be in one person, and the right to the possession in another. In such action it is unnecessary, even if plaintiff claims possession, as resulting from his ownership, that he shall so state. It is sufficient for him to allege his right to the possession, and maintain this by proof of ownership, which, in the absence of proof to the contrary, carries, with it the other right.”
So the concession in the stipulation that the plaintiff
Now, if wé start with the proposition that it is conceded that plaintiff was the owner of this property, it follows logically that he is entitled to the possession of it, unless the defendant affirmatively establishes the facts on which he relies to defeat the right to the possession. The'
Other questions are raised, touching the legality of the action of the trustees. The determination of this case does not require their consideration.
We find that defendant has not justified the distraint, and his action in taking up the stock was illegal, under the stipulation here submitted. The action of the court must, therefore, be — Affirmed.