161 Iowa 659 | Iowa | 1913
Plaintiff and defendants own and occupy adjoining farms, separated only by a public highway. Defendants’ dwelling house and improvements are on this highway. Immediately east and across the road is plaintiff’s land, and in the year 1911 he had sown a part of it in oats. At that time, defendants kept a large number (something like 200) of chickens about their yards and premises, and these were permitted to run at large, not only upon their own land, but also upon the public highway. Plaintiff alleges, and the testimony tends to show, that quite a number of these fowls went upon plaintiff’s land which he had seeded to oats and ate a large amount of the seed, which plaintiff had planted, to such an extent as to cause him to resow a part of the land; not only once, but twice or thrice. He also alleged that notwithstanding his crop was deficient and badly injured. He further averred that he requested defendants to restrain their chickens and keep them off his land, but that they refused to do so and stated that they did not intend to make any efforts in that direction. He brought this action for a mandatory injunction to compel defendants to restrain and keep their fowls from trespassing upon his land. After a trial upon the merits, the lower court granted the relief asked, permanently enjoining defendants from permitting or allowing any chickens or poultry owned or controlled by them from going on plaintiff’s premises. Defendants appeal from this decree.
The case, as we have said, is largely one of first impression, although we find some analogous cases to- which reference will be made. In Buford v. Houtz, 133 U. S. 320 (10 S. C. 305, 33 L. Ed. 618), the Supreme Court of the United States held that a landowner of parcels of land scattered through a large body of the public domain was not entitled to an injunction to restrain a cattle owner from trespassing upon his lands. In that case it was said that the common law of England was not applicable to our Western States. The Supreme Court of the United States quoted with approval the following from Seeley v. Peters, 5 Gilman (Ill.) 142:
Perhaps there is nó principle of the common law so inapplicable^© the condition of our country and people as the one which is sought to be enforced now for the first time since the. settlement of the state. It has been the custom in Illinois, so*665 long that the memory of man runneth not to the contrary, for the owners of stock to suffer them to run at large. Settlers have located themselves continguous to prairies for the very purpose of getting the benefit of the range. The right of all to pasture their cattle upon uninclosed ground is universally conceded. No man has questioned this right, although hundreds of cases must have occurred where the owners of cattle have escaped the payment of damages on account of the insufficiency of the fences through which their stock have broken, and never till now has the common-law rule that the owner of cattle is bound to fence them up been supposed to prevail or to be applicable to our condition. The universal understanding of all classes of the community, upon which they have acted by inclosing their crops and letting their cattle run at large, is entitled to no little consideration in determining what the law is; and we should feel inclined to hold, independent of any statutes upon the subject, on account of the inapplicability of the common-law rule to the conditions and circumstances of our people, that it does not and never has prevailed in Illinois. But it is unnecessary to assume that ground in this case. The legislation upon this subject, from the time when we were a part of the Indiana territory down to the last law contained in the Bevised Statutes, clearly shows that the Legislature never supposed that this rule of the common law prevailed in Illinois, or intended that it should.
The same rule was announced in Buford v. Houts, 5 Utah, 591 (18 Pac. 633); also, in McGinnis v. Friedman, 2 Idaho (Hash.) 393 (17 Pac. 635); applying the same rule to sheep: Martin v. Sheep Co., 12 Wyo. 432 (76 Pac. 571, 78 Pac. 1093) ; Healy v. Smith, 14 Wyo. 263 (83 Pae. 583, 116 Am. St. Rep. 1004); State v. Johnson, 7 Wyo. 512 (54 Pac. 502).
The Keil ease, supra, upon which plaintiff places his chief reliance, does not decide the proposition here involved; on the contrary, the court expressly refused to decide the question and reserved the point for further argument, when properly presented.
■ In view of the known habits and customs of our people from the beginning of the state, of the fact that our courts
The decree therefore is reversed, and the cause remanded for one in harmony with this opinion. — Reversed and Remanded.