Auеr recovered a judgment against the railroad company for $109.50, the value of sheep killed and injured on the company’s right of way.
The appellant claims a reversal on the ground that the apрellee was not the owner of the sheep.
The facts were found by the court, and were as follows : In the fall of 1882, Daniel Bros., delivered twenty-three sheep to the plaintiff under the following arrangement: Auer was to receive the sheep and keep and care for them on his farm. He had the right at his plеasure to return the identical sheep received, and was to deliver one-half the increasе and one-half the wool to Daniel Bros. If any of those originally delivered or of the increase died of disease, or from natural causes, it was agreed that such loss of those delivered, and of one-half the increase, should be borne by Daniel Bros. If any of the sheep should stray away and be lost, or if аny should be killed by dogs, or otherwise hurt or injured, Auer was to account for their value. The remainder of the increase were to be his property while he had them in possession. Before those receivеd had been returned, or any division of the increase made, the flock escaped out of Auer’s
Upon the facts found the court stated as a conclusion that the plaintiff was entitled to recover the value of the sheep killed and injured.
The statute which imposes liability on railroad companies for stock killed, gives the right of action to the owner of the stock. ' The question is, who was the owner ? As to the undivided increase, the ownership was in the plaintiff. This is upon the principlе applied in analogous cases, in which the relation of landlord and tenant exists. The holding in such cases uniformly is, that the title to the whole of that which is to be delivered as rent remains in the tenant until delivery is madе. He is regarded as the owner. For an injury to the property while so in possession of a tenant, he is entitled to maintain an action as owner. Chicago, etc., R. W. Co. v. Linard,
By the common law, an agister had such title in virtue of his possession as enabled him to maintain trespass or trover for an injury to or conversion of the cattle. Story Bailments, section 443. Whether one having animals in agistment with no such special agreement as appears in the case before us, could maintain an action as оwner, we need not determine. Under the arrangement set out in the special finding, it clearly follows the plaintiff was the owner.
On behalf of the appellant, it is contended that the right of possession which the appellee had did not invest him with title as owner. .Reliance is placed upon the definition of the tеrm “owner.” Owner, as defined by Bouvier is, “He who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a right to enjoy and do with as he
As to the three which were of the numbеr originally received, the conclusion that the plaintiff was entitled to recover for their loss was аlso correct.
When the sheep were killed or injured, the plaintiff was at once liable to Daniel Bros, under his contract. They could have maintained a suit against him directly.
In the case of Welty v. Indianapolis, etc., R. R. Co.,
As the plaintiff had the exclusive right of possession of
The judgment is affirmed, with costs.