60 Iowa 261 | Iowa | 1882
The questions certified are of such length we shall not set them out verbatim. The facts which the certificate justifies us in assuming as existing are as follows: There w'as no evidence showing that the plaintiff’s part of the fence was a lawful fence in the opinion of the fence viewers, but there was evidence tending to show that it was in fact lawful except in three or four places. There wras evidence tending to show that, according to a recent survey, the whole partition fence was longer by five rods than the plaintiff and defendant supposed; that that five rods had never been divided between them, and was not a lawful fence. There was evidence tending to show that forty rods of the defendant’s fence was not a lawful fence, and that the defendant’s stock broke over that part, and also over that part of the plaintiff’s fence which was lawful. The questions submitted in substance are, whether the court erred in deciding (instead of submitting the question to the jury) that the plaintiff’s fence was not shown to be a lawful fence, and whether, if it was not, he must necessarily fail to recover. The idea of the court appears to have been, that it was incumbent upon the plaintiff to show, in order to enable him to recover, that his own part of the fence had been adjudged to be lawful by the fence viewers, and that, in the absence of such showing, it was not material
Section 1119 of the Code, is in these words: “And if the animals are not lawfully upon the adjoining close, and came thereupon, or if they escaped therefrom into the injured inclosure, in consequence of the neglect of the adjoining owner to maintain any partition fence or any part thereof, which it was his duty to maintain, then the owner of the adjoining land shall be liable as well' as the owner of the animals.” We have a case where the owner of the adjoining land, and the owner of the animals is the same person. We cannot think that the legislature intended that the land owner should be liable where he does not own the trespassing animals, and escape liability where he does. We conclude, then, that if there was evidence (though not the testimony of the fence viewers, nor proof of their opinion) tending to show that the defendant’s part of the fence was not lawful, and that the cattle broke through it, the question of the defendant’s liability should have been submitted to the jury.
One of the questions argued is, as to whether, if the plaintiff’s fence was lawful except in two or three places, and the cattle broke through the lawful part and did damage, the plaintiff has a right to recover for such damage. But this question is not certified to us. The court did not find that the plaintiff’s fence was lawful except in two or three places, but only that there was evidence tending to so show. The jury might have found that it was lawful throughout. The question certified is, as to whether the court was justified on such evidence in withdrawing from their consideration the plaintiff’s claim. In answer to this question we have to say that we think it was not.
Ee VERSED.