189 Mo. App. 310 | Mo. Ct. App. | 1915
This is a suit for damages resulting from trespassing chickens. The plaintiff is a farmer and adjacent landowner to the defendants who owned the chickens which have trespassed on plaintiff’s land and damaged his garden and growing crops. The trial court sustained a demurrer to the petition and' the sole question is as to defendants ’ liability for damages so occasioned. The real question is whether under the law of this State, in the absence of any express statute on the- subject, the owner of domestic fowls must so restrain them as to prevent their trespassing on the land of another or must such other landowner protect his land against such trespass or suffer the incidental injury without redress.
We have been fully impressed with the gravity of the question at issue by the assertion on one side and the tacit admission on the other that Missouri is the greatest poultry State in the Union and that the products of this industry for three years would be of sufficient value to pay for building the Panama Canal. For the purposes of this case we accept, without verifying, the truth of this statement. Though thus impressed with the importance of this cause, our diligence has not been rewarded with finding a case in point in this State nor in any other State, except our neighbor and rival on the north as will be later noted.
It is asserted that under the common law of England, adopted in this State at an early date, domestic animals, including fowls, are required to be restrained by the owner from running at large. Contra, it is said that only so much of the common law of England has been adopted as is of a general nature and not local to that kingdom. [Section 8047, R. S. 1909.] So far as the common law requires the owner of domestic animals to restrain them from straying from his own
While chickens and like domestic fowls are not animals in the usual acceptance of that term, yet granting that they are included by the common law with domestic animals as among the living creatures which are to be restrained by the owner from running at large (Clark v. Keliher, 107 Mass. l. c. 409), hy analogy of reasoning, if the common law in this respect has never been in force in this State as to domestic animals, neither has it been in force as to domestic fowls, being opposed, as said by Judge Wagner in McPheeters v. Hannibal & St. J. R. R. Co., 45 Mo. 22, to the policy of this State, or, as said in McLean v. Berkabile, 123 Mo. App. l. c. 652, 100 S. W. 1109: “In this State at a time in its early history when there was much unoccupied and uninclosed land, this rule was deemed by the Supreme Court to be unsuited to the needs of a sparsely settled country and in its construction of legislation relating to the subject the court held that domestic animals should be allowed to range at will over uninclosed lands and compelled the owners of cultivated fields to fence against such animals if they would escape their depredations.”
It is a circumstance, not without much weight, that while it is common knowledge that chickens have been allowed to run at large for years, and, as respondent aptly says, “The court will take judicial notice and knowledge that no law, rule of action or conduct has ever prevailed, in this State, concerning chickens, other than unbridled license, unrestrained liberty and free range, hy universal consent, knowledge and acquiescence among the people from time immemorial,” yet, no suit of this character has ever been before the courts. [Ewing v. Vernon County, 216 Mo. 681, 689, 116 S. W.
We are also impressed with the fact that the legislative branch of our State government has always understood that the common law is not in force in .this State as to requiring the owners to restrain domestic fowls from running at large. Thus many years ago statutes were enacted and have remained in force specially authorizing cities and towns to prohibit such fowls, or certain species thereof, from running at large. [See sections 9229 and 9374, R. S. 1909.] In 1891 the Legislature enacted what is now section 790, Revised Statutes 1909, providing for the owner of domestic geese, where the stock law has been adopted, restraining them on his premises “the same as all other animals.” Expressio unius est exclusio alterius. It is
This same question, under laws similar to ours, was considered and much light thrown thereon by the Supreme Court of Iowa in Kimple v. Schafer, 143 N. W. 505, and the result reached that the rule of the common law requiring an owner to keep and restrain domestic animals upon his own premises is inapplicable to the habits and conditions of the people in Iowa and that same is true as to chickens. The common law in this respect had been adopted in Iowa the same as here, but it is shown by the many citations that practically all the States (the original Colonies perhaps excépted), as well as the Supreme Court of the United States in Buford v. Houtz, 133 U. S. 320, 33 L. Ed. 618, have held that the common law of England in this respect is not applicable to our conditions and therefore not in force. The fact that the Legislature of Iowa had passed certain statutes providing for restraining domestic animals in cities and towns was noted and the court then added: ‘‘These provisions of the Code are significant in that the only attempt made by the Legislature to regulate the running at large of poultry, turkeys, chickens, ducks, geese, guinea hens, or other fowls coming under that designation, refers only to cities or towns, thus indicating that in the country districts such animals are free commoners, and he who would be protected from their ravages must fence or protect his land against them. We should not shut our eyes to the fact that from the very beginning of the State, even in its territorial stage, chickens have been what may prop
The cases of O’Riley v. Diss, 41 Mo. App. 184, and Growney v. Railroad, 102 Mo. App. 442, 76 S. W. 671, and like cases, have been noticed by us in considering this case. Those cases are not applicable however as they deal with the relation and duties of adjacent landowners to each other who have by agreement joined outside lawful fences and where each such landowner relies for protection to his land on the common fence inclosing his and his neighbor’s land. [Demetz v. Benton, 35 Mo. App. 559, 565.] The Legislature has never defined a lawful fence as regards chickens or domestic fowls. On this record neither party had erected any fence or barrier as a protection against chickens and we need not discuss what would or would not be sufficient in that respect.
The restdt is that the judgment of the trial court is affirmed.