4 Colo. App. 201 | Colo. Ct. App. | 1894
delivered the opinion of the court.
Robert S. Smith brought his action against J. H. Fugate for trespass to real estate. The complaint alleges that the plaintiff was the owner in fee of certain lands, describing them by their legal divisions and subdivisions; and that the defendant forcibly broke down a fence standing upon these lands, so that horses and cattle entered upon the premises, and ate up plaintiff’s grass and hay, and trod down and injured his crop of'growing potatoes; by reason of all of which he suffered damage. The answer was a general denial. The plaintiff had verdict and judgment.
We are asked to say that the verdict is not sustained by
Defendant assigns error upon the refusal of the court to instruct the jury that the proper position of the monuments marking the boundary line between the lands of plaintiff and defendant must be determined and the line re-established by reference to the field notes of the original United States surveys, and by surveys made in the usual and proper manner in accordance therewith. It is unnecessary to decide whether the proposition embraced in the refused instruction is correct or not in the abstract. The nature of the evidence
Fault is also found with the instructions given. The first declares the long established law of trespass to real estate as applicable to the pending case, and is unobjectionable. The second defines a lawful fence under the statute. This instruction should not have been given. The statute prescribes the character of fence which must be maintained to enable a party to recover damages from the owner of animals breaking through it, but it has no applicability where the fence is willfully broken down by the defendant himself. In such case he is a trespasser, and liable for the consequent injury, no matter what the character of the fence. But we are unable to see what harm could come to the defendant from the giving of the instruction. It required the finding of a better fence than the plaintiff was obliged to maintain for the purposes of his case, and in so far was against him. The only party who could possibly have been injured by the instruction was the plaintiff.
We see no reason for reversing the judgment, and shall therefore affirm it.
Affirmed.