26 Iowa 94 | Iowa | 1868
Appellant makes but one point. He says the plaintiff should have proved a wronqfxd taking of the property by the defendant, or a demand before suit brought. Was the taking wrongful? If so, the foundation of the appeal fails. Each party, as before stated, claimed ownership. The bill of exceptions recites, “ that the defendant and members of his family had been to the residence of the plaintiff several times before the final taking of the steer, and talked over the question of title and possession, and plaintiff had several times refused to allow defendant to take away the animal; and at the time it was taken, it was running at large upon the prairie with other cattle belonging to the plaintiff, near the residence of the plaintiff and within sight of his house, but upon the commons. It was the wife and two sons of the defend
Two juries have found that the animal was the plaintiff’s. Defendant knew that the plaintiff claimed to be the owner, and that he denied the defendant’s asserted ownership. Defendant also knew that the plaintiff had several times refused to let him take the property away from the plaintiff’s house.
Under these circumstances the act of the defendant in separating the animal in question from the plaintiff’s drove was a hostile act, and done at defendant’s peril, if he could not show himself to be the owner.
Stanchfield v. mer (4 G. Greene, 25), rehed on by appellant's counse', will be found reyiewed in the quite recent case of Smith v. McLean (24 Iowa, 322), and has no application to this case, since here there was, as we have seen, a wrongful taking.
Affirmed.