196 P. 376 | Or. | 1921
We must bear in mind that the question before us is one of pleading, and not of proof. The averment is, in substance, that the plaintiff permitted the sheep mentioned in the complaint to run at large and to go on the farm of the defendants. It is argued by the plaintiff in effect that it is impossible within the terms of the statute in question for animals to .run at large on private property; that the enactment clearly contemplated that the running at large must be in some public place such as commons or the highway, and that the answer, having stated that the sheep in question were permitted by the plaintiff to run at large upon a private farm, is a contradiction of terms, and hence insufficient as a defense. We are therefore concerned for the present with a true definition of the term “running at large.” At this stage of the discussion, the matter of permitting such a thing must be laid aside temporarily. A great deal has been written under different statutes about this expression. In Keeney v. Oregon R. & N. Co., 19 Or. 291 (24 Pac. 233), the court, speaking by Mr. Justice Lord, had occasion to discuss the phrase, “running at large” respecting livestock. That was an action against the railroad company for killing sheep on its unfenced track by the operation of its trains. At that time the statute provided that allowing stock to run at large upon common unfenced range or upon inclosed land owned by or in the possession of the owner of such stock, should not be
“Stock running at large are animals that roam and feed at will, and are not under the immediate * * control of anyone. They may be in an inclosure which may restrain the limits in which they shall wander and feed, or they may be on an unfenced range, relatively without limit, where they may roam and feed at will: but in either case they are not subject to the direction and control of anyone. So to speak, they are master of their own movements, going whither they will without personal direction or control. In such cases, if they wander upon the track of a railroad and are killed, the owner in allowing them to run at large is not guilty of contributory negligence, and precluded from a recovery. But stock or sheep in charge of a herder and subject to this control, whether in an inclosed field or upon a range, is not stock running at large, as the places whither they wander and feed or lie down to rest are selected by him and subject to his direction and control. * * In such case, the stock is not to be
The principle underlying the question under discussion is that, if the animals are beyond the control of their owner, they are “at large,” irrespective of the place where they may be. For instance, in Conway v. Jordan, 110 Iowa, 462 (81 N. W. 703), it was held that if the plaintiff turned his hull into a pasture that was not properly fenced and that did not restrain him, and the bull escaped therefrom into an adjoining field, he would be at large. To the same effect are Duggan v. Hansen, 43 Neb. 277 (61 N. W. 622); Fraser v. Hawkins, 137 Ark. 214 (208 S. W. 296); Hosley v. Bamber, 199 Mich. 655 (165 N. W. 687). In McKenzie v. Newton, 89 Ark. 564 (117 S. W. 553), it was held that, under Section 5451, Kerby’s Digest, animals are “running at large” if they are within the corporate limits of a town without being under the control of anyone. In Paris v. Hale, 13 Tex. Civ. App. 386 (35 S. W. 333), according to the syllabus:
“An animal is running at large, within the meaning of a city ordinance requiring the city officers to impound animals ‘running at large,’ and providing for their sale after reasonable notice, though it has escaped from the inclosure in which it was kept by the owner without his knowledge or fault.”
In Hinman v. Chicago etc. Ry. Co., 28 Iowa, 491, the railroad was required to fence its track against stock running at large. The court held:
“In our opinion, the words ‘running at large,’ as used in the section above named import that the stock are not under control of the owner; that they are not confined by inclosures to a certain field or place, nor under the immediate care of a shepherd or
Inman v. Chicago etc. Ry. Co., 60 Iowa, 459 (15 N. W. 286), was a case where a team, frightened by the trains of the railroad company, broke loose from the place where it was tied and ran upon the track two miles away, where the track could have been fenced, and was injured by collision with a train. The court held the principle as laid down in 28 Iowa, 491, with this addition:
“Where the animal escapes from the control of the owner, and cannot be caught by the owner, then such animal would be running at large, within the meaning of the statute.”
Hammond v. Chicago etc. Ry. Co., 43 Iowa, 168, held that a mule which got out of its stable on its owner’s premises, escaped through an open gate which it was the owner’s duty to keep closed, went upon a railway track where the same could have been fenced, and was killed, was running at large. Valleau v. Chicago etc. Ry. Co., 73 Iowa, 723 (36 N. W. 760), teaches that a steer, straggling from the main herd which was being driven across the track by the herder in charge, was running at large.
As stated, the underlying principle of these decisions is that the animal is running at large, if beyond the control of its owner. The control need not be actual, manual, physical restraint. It is said in 18 Am. & Eng. Ency. Law (2 ed.), 536:
“Perhaps no precise abstract rule under the statute can be laid down, applicable to every case, as to the nature, character, and amount of restraint necessary to be exercised over a domestic animal when suffered to be on the highway incident to its use. But the restraint need not be entirely physical; it may depend much upon the training, habits and in
For instance, in Jeffries v. State, 102 Ark. 373 (144 S. W. 514), it was held that a cow habitually driven along a highway to pasture in the morning and regularly returning in the evening to be milked, was not running at large. This was under a statute which relieved from the charge of larceny the party who took up an unmarked animal running at large on the commons, but made him liable only civilly to the owner. The point was, that the training of the animal by its owner was a sufficient restraint of it, so that it could not be said to be running at large, although beyond his immediate manual control. That, also, was the essence of the holding in Gooding v. Atchison etc. Ry. Co., 32 Kan. 150 (4 Pac. 136), where a bull was within his owner’s inclosure through which ran the defendant’s unfenced track. It was there decided that the animal was not running at large, although he wandered upon the track which the defendant was required by law to fence, but did not. In other words, the bull was at all times within the usual control of his owner.
The case in hand is to be distinguished from Ball v. Croisan, 68 Or. 455 (137 Pac. 225). There the plaintiffs sought to recover damages for the trespass of the defendant’s stock upon their premises. Their right to recover under the statute as it stood at that time depended upon whether or not they had a lawful fence inclosing the premises upon which the trespass was committed. The statute here involved has been enacted since that decision and creates a pro
“There is a distinction to be noted between a statute which attaches a penalty to the act of ‘permitting animals to run at large,’ and one which makes it the duty of some official of a municipality to take up an animal ‘found running at large.’ 'Suffering or permitting an animal to go at large implies knowledge, consent, or willingness on the part of the owner, or such negligent conduct as is equivalent thereto; but does not comprehend a case where, through some untoward circumstance, the owner is unable to watch
See also, on this point, Evans v. Holman, 202 Mo. 284 (100 S. W. 624); Peck v. Liesmann, 142 Mo. App. 476 (127 S. W. 107).
That is to say, it is one thing for stock to be running at large, or, what is synonymous, beyond the control of the owner, but permitting it is quite another matter.
In the instant case, by proper allegation the defendants have set up a statutory condition preventing the maintenance of this action for want of tender of the lawful charges. Whether these allegations can be proved or not, is not before us, but the trend of authority has been indicated for the guidance of the parties. We hold in conclusion that animals beyond their owner’s control may run at large on the private lands of another.
There was error in sustaining the demurrer. The judgment is reversed and the cause remanded for further proceedings. Reversed and Remanded.