Knour v. Wagoner

| Ind. | Jun 14, 1861

A Woeden, J.

Suit by Wagoner, against Knour, to recover damages for driving the plaintiff’s sheep out of the defendant’s field,- so far upon the commons that they strayed away, and became lost to the plaintiff.

Trial; verdict, and -judgment for the plaintiff.

On the trial, the Court gave the following instructions to the jury, to which the defendant excepted, viz.,

“ 1. If Knour turned these sheep out of the pasture into the road, and then drove them off to such a distance that they became lost, Knour is liable, without" reference to the question how the sheep got into his pasture.”

2. “If the sheep escaped from Wagoner's inclosure into Knour's inclosure, through a defect in the fence, caused by Knour's cattle, and Knour turned the sheep into the road, and they strayed and were lost, then Knour is liable; but if Wagoner's horses broke down the fence, then Knour is not liable.” The following charge was also given, at the instance of the defendant, viz.,

“If the sheep'broke, or went, into Knour's pasture, he would have a right to turn them out into the road, without making himself liable for damages to Wagoner''

These charges, taken together, are fully as favorable to the defendant as he could ask. The first, in connection with the last, amounts to this: that if the sheep broke into the defendant’s field, he would have the right to turn them out into the road; hut having turned them out, he would have no right to drive them off to'such a distance as to become lost.

The second charge asserts, in substance, this proposition: that if the defendant’s cattle knocked down the partition fence between the parties, whereby the plaintiff’s sheep escaped from his, into the defendant’s, premises, the defendant had no right to turn them out into the road.

Suppose the defendant himself, instead of his cattle, had thrown down the fence, it is not perceived that the case would be materially changed. It cannot, with much plausibility, be contended that one of two adjoining proprietors may law-folly throw down the division fence between them, and toll his neighbor’s cattle on to his own premises, and then turn ^hem out, in to the public highway.

P. A. 0handler, for the appellant. J. H. Brown and J. Parle, for the appellee.

We cannot disturb the verdict on the evidence, as that strohgly tends to support it.

Par Ouriam.

The judgment is affirmed, with 10 per cent, damages and costs.