176 P. 433 | Wyo. | 1918
This cause was heard in the district court upon a general demurrer to an amended petition, and the demurrer was sustained. The plaintiff excepted thereto and elected to
The petition alleges in substance: That on or about July-20, 1916, the defendant- was occupying, using, enjoying, maintaining and in charge of a certain enclosure in Big Horn county, this state, to-wit: The NE% of the NEj4 of Sec. 27, Twp. 50 N., Range 93 W., within which said enclosure the defendant was cultivating and raising alfalfa grass. That he did not keep or maintain a lawful fence around said enclosure, but that the fence was unlawful in this: That in some places there were only two wires of the wire fence around the enclosure, between posts about 30 . feet apart and without any stays between the posts; that the wires were loose and sagging; and the fence was in such condition that it would allow cattle to stray and entér the enclosure. That green alfalfa grass is a well known danger ’ to cattle used to dry feed only. That on or about said date the'plaintiff was the owner of a cow of-the value of one hundred dollars, which he had allowed on that date and previous thereto to run upon the public range and was used to dry feed only. That the eating of green alfalfa grass by cattle used to dry feed only causes' them to -bloat and is invariably-fatal to them, a fact generally known to all cattle raisers, ranchers, and well known by the defendant. That on or about said date, by reason of the careless, negligent and unlawful maintaining by the defendant of his said fence, the said cow of the plaintiff strayed in and upon the said enclosure and ate green alfalfa grass and thereby became bloated and died, to plaintiff’s damage in the sum of $100. And judgment was prayed for that sum with interest and costs.
It will be observed from these allegations that the right of action or claim for damages is based solely upon the alleged fact that defendant maintained an unlawful wire fence around s'aid'land; referred to as his enclosure-, which would allow cattle to stray and enter thereon. No other act of negligence or violation of duty is alleged, nor that the de
Appellant concedes in his brief that no obligation to fence is imposed by law, and, further, quoting from the brief: “It is true the law is well settled that where there is no obligation to fence and trespassing stock go upon unenclosed lands no recovery can be had for damage to crops or damage to stock, each using ordinary care.” But it is argued, in substance, that, although a landowner is under no obligation to fence out another’s livestock, and may leave his land and growing crops unenclosed and himself thereby free from liability for injury to stock straying thereon, it becomes his duty, under the statute, when constructing a wire fence around or to enclose his land, to so construct it that it will be a lawful fence as defined by the statute; and that after it has been constructed the further duty is imposed upon him to maintain it as a lawful fence; and that the rule of no liability where there is no obligation to fence, and cattle or other domestic animals trespassing upon unenclosed lands are injured nr die from eating some poisonous substance thereon or from falling into a pit, well or other excavation, is therefore not applicable.
The common law rule requiring the owner of cattle and . other domestic animals to restrain them has never been in force in this state, because of different conditions existing rendering that rule inapplicable, the owner of such animals
As above stated, the right of action in this case is based upon the alleged negligence of the defendant in failing to maintain a lawful fence, or in maintaining a fence surrounding his land in such a defective condition that it permitted plaintiff’s cow to enter upon the land through said fence. And in support thereof the plaintiff relies upon the provisions of Sections 2578 and 2588, Compiled Statutes of 1910. Section 2578 defines what shall constitute a lawful fence in this state, and as in force in 1916, when this cause of action is' alleged to have accrued, reads as follows (omitting some immaterial provisions at the end of the section) :
“The following shall be a lawful fence in the State of Wyoming: A fence made of tubular wrought iron fence posts or sound wooden posts and three spans of bathed wire, or two spans of barbed wire with a wooden rail on top, and said posts so used to be tubular wrought iron fence posts, with cast iron base to be twenty-two inches in length, or wooden posts at least four inches in diameter, set firmly in the ground at least twenty inches deep, either side of said posts, so used, to be placed at no greater distance apart than eighty feet, with iron or wooden stays not more than ten feet apart; a post and board fence made of sound posts, not*60 less than four inches in diameter, set substantially in the ground not more than ten feet apart, with three boards of one inch lumber, eight inches wide, and not more than ten inches apart, or four 'boards of one inch thick and six inches wide, not more than eight inches apart, securely fastened with nails or otherwise, a three pole fence with round poles, not less than two inches in diameter, at the small end, with either upright or leaning posts, not more than twenty-two feet apart, and securely fastened with nails, wires, or otherwise ; Provided, That all other fences made and constructed of boards, rails, poles, stones, or hedge plants, or other material except wire, which, upon evidence, shall be declared to be as strong and as well calculated to protect enclosures, and shall be as effective for resisting breaching stock as those hereinbefore described, shall be considered a lawful fence; Provided, That none of the fences above described shall be considered lawful if less than four feet high, except within the corporate limits of an incorporated city or town.”
As will be observed, that section describes not only a lawful barbed wire fence, but also a lawful post and board fence, and a lawful pole fence, and provides further that all other fences constructed of any material except wire, shall be considered lawful, which, upon evidence, shall be declared as strong and as well calculated to protect enclosures, and as effective for resisting breaching stock, as those described.
Section 2588 reads as follows:
“Any person or persons, company or corporation who shall construct or maintain, contrary to the provisions of this chapter, any unlawful wire fence, shall be liable in a civil action for all damages to animals that may occur by reason of such unlawful enclosure, and the owner or owners of any such unlawful wire fence shall, moveover, be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not less than five dollars nor more than twenty-five dollars, and for each subsequent offense the fine shall not be less than twenty-five dollars nor more than one hundred dollars.”
The fence statute nowhere declares a liability for damages occurring by reason of any other kind of unlawful -fence or enclosure or provides any penalty for constructing or maintaining any other kind of fence not constructed or maintained so as to constitute a lawful fence as defined by law. And it is clear that there must have been some reason for the above mentioned provisions with respect to an unlawful wire fence that would not apply to any other kind of fence. We cannot conceive that the legislature would have singled out a wire fence and prescribed a penalty for constructing or maintaining it in an unlawful manner and given a right of action for damages, as in Section 2588, if it did not have in mind a danger peculiar to that kind of a fence and a damage that might occur to an animal therefrom, which would not exist or be liable to occur in the case of an unlawful post and board fence, pole fence, or any other kind of fence which the statute declares or authorizes to be declared lawful, except one made of wire.
It is certain that if the fence maintained around the land in question had been constructed of some material other than wire, and had been so defective that it would not prevent the entry of animals upon the land, the same injury and
The history of the legislation, in view of the condition of the law at the time these provisions were enacted, tends to support our construction of the section. It has been held in many cases that, in the absence of a statute either authorizing or prohibiting the construction of a barbed wire fence, one who negligently constructs or maintains such a fence, that is to say, in a negligent manner, resulting in an injury to live stock 'by contact with the wires of the fence, is liable in damages for such injury; but it is also held that a fence of that material is not a nuisance, nor its construction negligence, per se. (Sisk v. Crump, 112 Ind. 502, 14 N. E. 301, 2 Am. St. Rep. 213; Mullen v. Renzleman, 31 Okla. 53, 119 Pac. 641, Ann. Cas. 1913D, 778. And see note to the Oklahoma case in the volume of Ann. Cas. cited, p. 781.) But when the provisions of our statute here relied on and above quoted were enacted the law on the subject independent of statute was unsettled. The statute containing these provisions was enacted in 1888. (Raws 1888, Ch. 33.) A previous similar statute had been enacted in 1882. (Laws 1882, Ch. 46, Rev. Stat. 1887, Secs. 4192, 4194.) Prior to the Act of 1882 the fence statute did not include a wire or barbed wire fence among those declared to be lawful. (Comp. Laws 1876, Ch. 51.) B'y these statutory provisions the questions aforesaid relating to the right to construct and maintain a barbed wire fence and the liability for injuries caused thereby were settled, first, by declaring a barbed wire fence to be lawful when constructed in the manner described, and, second, to protect against the natural dangers to live stock of such a fence when improperly constructed or main
We think it true that one constructing or maintaining a wire fence is required by the státute to construct or maintain it as a lawful fence. That seems to' follow from the provision of Section 2588 that the owner or owners of an unlawful wire fence shall be deemed guilty of a misdemeanor, and prescribing a fine as punishment upon conviction thereof. And there are other provisions to the same effect in Sections 2587 and 2589-, Compiled Statutes, which require the owner of an unlawful wire fence to reconstruct it into a lawful wire fence, and provide a penalty for his refusal or failure to do so. Parenthetically, it may be said that Section 2589, as found in the 'Compiled Statutes of 1910, which was copied therein from the Revised Statutes of 1899, is not what was enacted by the legislature. The mistake was first made in the Revised Statutes of 1899 by omitting some important words included in the section as originally enacted. The section as enacted was Section 3 of the Act of 1888 (Ch. 33). That section in the original act immediately followed a section containing the provisions now found in Section 2588; and said section 3 provided, not as stated in the Revised Statutes of 1899 and Compiled Statutes of 1910, that “the owner or owners of any unlawful wire-fence shall reconstruct the same into a lawful wire
But it does not follow that the owner is liable for damages for an injury occurring within the enclosure from other causes than contact with the fence. The statutory requirement that a wire fence shall be constructed and maintained as a lawful wire fence, if constructed or maintained at all as a wire fence, does not impose the duty to fence or to prevent the entry of another's cattle upon the owner’s land. There would seem to be no doubt that, notwithstanding the said provisions of the statute, one having constructed and maintained an unlawful wire fence, as well as a lawful one, may remove the same and allow his land to remain unenclosed, unless he is bound by contract to prevent another’s live stock from straying upon his land, or that duty has arisen by prescription. And it is not otherwise contended in this case. The penal provisions aforesaid and the provisions requiring an unlawful wire fence to be reconstructed into a lawful wire fence, are clearly intended, not to require
We hold, therefore, that the defendant was under no duty to keep his premises sufficiently enclosed to prevent the live stock of others from going upon his land, and that as the crop growing thereon was not unlawful, but might have been lawfully cultivated and grown upon unenclosed land, the fact that his fence had been carelessly constructed or in ajmanner other than that declared lawful by statute, and not so as to- prevent the cow of plaintiff from going upon the land and eating of the crop thereon, is not liable for the damages claimed’, and for that reason the petition fails to state a cause of action. We conclude that the demurrer was properly sustained.
Affirmed.