140 P. 832 | Wyo. | 1914
In this action the plaintiff in error, who was plaintiff below, sought to recover damages for the loss of certain cattle which fell into a ditch and were killed. So far as necessary to understand the question presented here, the facts as stated in the petition are, that the defendant owned, operated and constructed a certain reservoir and irrigation works; that it constructed a spillway in the reservoir for the purpose of carrying off the surplus waters accumulating therein and that great quantities of water from said spillway flowed across a certain section of land, causing a deep ditch to be washed out across said land, which ditch was unsafe and dangerous to live stock crossing the range at or near said reservoir and spillway. That defendant knowingly, wilfully, carelessly and negligently maintained said ditch in a dangerous condition, and failed and refused to fence or guard it in any manner, although aware of its dangerous condition. That certain cattle of plaintiff were caused by a snow storm to travel toward said unguarded ditch, fell therein and-were killed by reason of defendant’s negligence in not properly fencing and guarding said ditch.
The sole question presented is whether or not the owner or person in lawful possession of uninclosed lands is liable in damages to the owner of live stock killed or injured by straying thereon from the public range, if the owner or person lawfully in possession of such premises causes or permits them to be in an unsafe or dangerous condition for live stock so straying thereon.
The gist of the argument of counsel for plaintiff is, that the cattle were not unlawfully on the premises and hence were not trespassing thereon. This argument is based upon the holding that the owner of live stock running at large upon the range is not liable for damages done by such stock straying upon the uninclosed lands of another. But the reason for such non-liability is not because they are not trespassing, but.because no duty rests upon the owner to keep his stock off uninclosed land and he is not guilty of negligence in failing to do so or in permitting them to run at large; and being guilty of neither a wilful trespass, nor negligence in the care of his stock, he is not answerable in damages; and for the further reason that the land owner
Affirmed.