Lazarus v. PhelpsLazarus v. Phelps
- Reporters:
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- Before:
- Brown
after stating the case, delivered the opinion of the court.
But a single error is assigned to the action of the court below, and that is to the charge that defendant was liable to the plaintiff for the value of the use and occupation of the plaintiff’s land, if he had in the common enclosure more cattle than were sufficient to consume the grass on the lands leased of the State of Texas by the defendant.
The defendant, upon the contrary, requested the court to charge that “in Texas, the law is that the owner of stock is not required to keep them in an enclosure, or to prevent them
The rule of the common law was admitted to be that a land owner is not bound to fence his land against the cattle of others. The owner of such cattle must confine them to his own land, and will be liable for trespasses committed by them upon the unenclosed lands of others. This rule, however, has been modified in Texas by Revised Statutes of Texas, article 2431, which enacts that “every gardener, farmer, or planter shall make a sufficient fence about his clear land under cultivation at least five feet high, and make such fence sufficiently close to prevent hogs from passing through the same.” And by article 2434: “If it shall appear that the said fence is insufficient, then the owner of such cattle, horses, hogs, or other stock shall not be liable to make satisfaction for such damages.” Construing this statute, the Supreme Court of Texas held, in
Sabine & East Texas Railway
v. Johnson, 65 Texas, 389, 393, that “ since the .fence law of 1840 the owner of unenclosed land has no right of action for the intrusion of stock upon it. . . . The appellee had no right to graze his cattle on these leagues, but in doing so was guilty of no actionable wrong. In letting his stock range on this land he asserted no right in the land and acquired none.” See also
Pace
v. Potter, 85 Texas, 473, 476. This custom of permit
The object of the statute above cited is manifest; As there are, or were, in the State of Texas, as well as in the newer States of the West generally, vast areas of land over which, so long as the government owned them, cattle had been permitted to roam at will, for pasturage, it was not thought proper, as the land was gradually taken up by individual proprietors, to change the custom of the. country in that particular, and oblige cattle owners to incur the heavy expense of fencing their land, or be held as trespassers by reason of their cattle accidentally straying upon the land of others. It could never have been intended, however, to authorize cattle owners deliberately to take possession of such lands, and depasture their cattle upon them without making compensation, particularly if this were done against the will of the owner, or ünder such circumstances as to show a deliberate intent to obtain the benefit of another’s pasturage. In other words, the trespass authorized, or rather condoned, was an accidental trespass caused by straying cattle. If, for example, a cattle owner, knowing that the proprietor of certain lands had been in the habit of leasing his lands for pasturage, should deliberately drive his cattle upon such lands in order that they might’ feed there, it ‘would scarcely be claimed that he would not be bound to pay a reasonable rental. So, if he lease a section of land, adjoining an unenclosed section of another, and stock his own section with a greater number of cattle than it could properly support, so that, in order to obtain the proper amount of grass, they would be forced to stray over upon the adjoining section, the duty to-make compensation would be as plain as though the cattle had been driven there in the first instance. The ordinary rule that a man is bound to contemplate the natural and probable consequences of his own act would apply in such a case. In
St. Louis Cattle Co.
v. Vaught, 1 Texas Civil Appeals, 388, 390, the court observed : “This doctrine, however, does not authorize the owner of cattle by affirmative conduct on his part to appropriate the
In the case under consideration, the testimony showed that for five years before the plaintiff acquired title to the lands in question, they had been leased to Curtis and Atkinson for pasturage purposes, at a rental of two cents per acre, with the stipulation that all permanent improvements erected by the lessees during the term should, at the end of the term, remain on the leased lands, and become the property of the lessor; and that they were about leasing the alternate sections of school lands when they failed; that in September, 1887, defendant, who, in the June previous, had bought out the stock of Curtis and Atkinson, together with all their interest in the fences, corrals, water tanks, (one of which was upon plaintiff’s land,) and other property within the common enclosure of plaintiff and the public school lands, leased of the State the alternate sections of school lands within this enclosure for four years at. four cents per acre-. It seems, too, that negotiations were had, after defendant bought the cattle and horses from Curtis and Atkinson, between him and the plaintiff’s agent respecting the lease of plaintiff’s lands, but no agreement was reached between the parties as to the price to be paid, and the
These facts certainly showed an intent on the part of the defendant to a-vail himself of the pasturage of plaintiff’s lands, and fully authorized the instruction of the court to the jury that, if the defendant overstocked the enclosure, he should be held liable to the plaintiff for the rental value of the lands. In such case the law raises an implied promise to pay a reasonable sum for the use and occupation of the lands, even though negotiations for a new lease had proven unsuccessful. Schuyler v. Smith, 51 N. Y. 309.
There was no error in the action of the court below, and its judgment is, therefore,
Affirmed.