26 S.D. 420 | S.D. | 1910
Plaintiff brought sui-t against defendants to recover, as damages, the value of a certain mare alleged :to have become lost by reason of the. unlawful and negligent acts of defendants in tearing down and removing a certain pasture fence. There was a verdict and judgment in favor of plaintiff. Defendants appeal. It appeared on the trial that one Robertson was the
As against the landlord Robertson, under section 899, Civ. Code, the fence in question, placed on said land by defendants, remained the personal property of defendants and might have been removed by them at any time before the expiration of the said lease to Emma Linder; but, Emma Linder, not having recorded •her lease, under sections 986 and 987, Civ. Code, said lease was void as against the lease to plaintiff who stood in the position of
The burden of proof being on plaintiff, it was incumbent on him to' establish by evidence, not only the unlawful act of defendants, but also that the loss of said horse was the proximate result of said act of defendants in removing said fence. If said horse escaped from said pasture and was not therein at the time defendants removed said fence, then it necessarily follows that the removal of said fence, however unlawful and negligent the same might have been, was no part of the proximate cause which produced the loss of said horse. We are of the opinion that the evidence is wholly insufficient to' show that the loss of the horse in question was the result of the removal of said fence. The evidence of Alfred Binder and witness Jameson that they searched said pasture, and that there were only four horses therein at the time the fence was removed, stands undisputed. The evidence of Alfred Binder that on the east side of the pasture where the fence crosses the creek there had been a washout, and the bottom wire was from three to' four feet from the ground is also undisputed. The evidence that the lost horse was a “bunch quitter” is also undisputed. That a large portion of the fence was constructed of two wires, on posts, in places two- rods apart, is undisputed. The evidence of plaintiff that he rode the fence the evening before he went to the agency and stapled and left it all in good shape does not tend to show the condition of the fence at any point. It is only his conclusion. It is a matter of common knowledge that a two wire fence on posts two rods apart, where the bottom wire is
The judgment of the circuit court is reversed and a new trial ordered.