By the Court,
The action below was brought by the defendant in
The record shows that in May, 1867, the defendant below was the owner of a quarter section of land in Bourbon county, within one mile and a half of Fort Scott, which land he had owned for six or seven years, and upon which he resided at the commencement of the war. At that time his house and well and a few acres of the land were enclosed with a fence, but afterwards, and during the war, he removed to Leavenworth county, and did not return to the land until after the horse was found dead in the well. While he was absent from Bourbon county, and some two or three years before the horse’s death, the fences were destroyed, and there was no enclosure left to prevent stock from falling into the well. There was no road legally established on or adjoining the defendant’s land, but the public travel from Fort Scott, south, was on or near the defendant’s land, and within from forty to sixty feet east of the well.
In May, 1867, Mathews occupied a farm, not adjoining, but a mile distant from Caulkin’s land; Mathews owned a horse, blind of an eye, which he permitted to run at large and range and graze with his other stock upon the unenclosed prairies of that vicinity. The horse had been running at large about a month, but had been seen alive only a few days before he was found dead in the well.
It is the custom in that place to allow stock to run at lai’ge on the defendant’s land and on other unenclosed lands in that vicinity. Mathews had frequently been on Caulkin’s land, and had known for nearly a year the condition of the well.
There are a great many assignments of error in this case, but we think, the record raises nearly the precise questions that were raised in the case of the U. P. Railway Co., E. D. v. Rollins & Thompson [ante, p. 167] decided at this term : hence we will refer to that case for a full discussion and decision of the questions involved in this case.
This case, as that, was tried upon the erroneous theory that the plaintiff had a right to pasture his stock upon the unenclosed lands of the defendant; and, as a necessary corollary that the defendant was bound to use ordinary care and prudence in the management of his land, so as to protect the plaintiff’s stock from injury while so pasturing there; and to this cause is probably referable all the errors committed by the court below in this case.
In view of this theory, and in order, as it seems, to prove the right of the plaintiff to pasture on the defendant’s land, the court admitted testimony tending to show the custom of the country in that vicinity to pasture on the unenclosed lands generally, and the defendant’s land in particular, and also testimony tending to show the existence of a public road on or near the defendant’s land.
Evidence : Custom: Highway. Neither are admissible in this case for that purpose. unauthorized or illegal custom can convert a wrong into a right; and how a public road on the defendant’s land would give the plaintiff any right to pasture his horse outside of the road we cannot see. It is questionable even whether the plaintiff would have any right to pasture his horse in the road itself. It is hardly to be supposed that the legislature, by authorizing
We can see no good or valid reason why the court below should not have given the instructions to the jury prayed for by the defendant. We have doubts whether the evidence, as it appears before us, proved any case against the defendant. We have doubts as to whether it shows any negligence on the part of the defendant with reference to the plaintiff, but we do not think it was such a clear case, as would warrant the court below in taking the case from the jury by instructing them to find for the defendant, the jury being the judges of the facts and of what the evidence proves and what it disproves.
The charge as embodied in the first, second, third and fourth instructions was erroneous. The court substantially charged that the defendant should exercise ordinary care and prudence in the management of his property, and that he would be liable for any negligence in the use thereof, which is not the law for this ease. The
The other instructions in the case were, as we think, properly given. We would refer to the cases cited in the case of the U. P. R. W. Co. v. Rollins & Thompson, decided at this term, and also to the following cases: Blythe v. Topham, Cro. Jac., 158; Knight v. Toledo and Wabash R. R. Co., 24 Ind., 402; Aurora Branch R. R. Co., v. Grimes, 13 Ill., 585.
The court below also erred in refusing to set aside the verdict and grant a new trial. The judgment is therefore reversed, and the cause remanded with the order that the court below grant a new tidal, and proceed in the ease as though no trial had been had therein.