| Iowa | Apr 9, 1866
If the company, then, shall property fence its road, and erect gates at private crossings, for the accommodation of the adjoining proprietor, is it liable for injury to stock getting on to the track, by reason of defect in such gates, or the failure to keep the same property closed and fastened ? We entertain no doubt that, as to third persons, it is as much the duty of the company to keep the fence, in all its parts, in repair as to erect it in the first instance. When the passage way is made for the convenience of the adjoining proprietor, then if his stock shall get upon the track because of his negligence in leaving the gate open, he could not (except in cases of gross negligence, certainty, on the part of the company) recover for any injury the stock might receive. And the same rule would obtain as to third persons guilty of like negligence. When the road is property fenced, and the company uses the necessary care in keeping it up or in good condition, and it is thrown or left down or open by the act of a third person, without
But assuming that under such circumstances the company might be made liable, does it therefore follow that the third person would not also be ? In other words, if by the fault or willful act of a third person the fence is torn or left down, may not the party inj ured elect which he will sue, and is he confined to his remedy against the company? It often occurs, as is well known, that a party has his election of remedies, as also a right to determine of which one of ¡several persons, equally guilty, he will seek his recovery. The question then remains whether, under the facts stated, defendant is liable.
In this State cattle are “ free commoners.” Alger v. Mississippi and Missouri Railroad Company, 10 Iowa, 268" court="Iowa" date_filed="1859-12-29" href="https://app.midpage.ai/document/alger-v-mississippi--missouri-railroad-7091956?utm_source=webapp" opinion_id="7091956">10 Iowa, 268, and cases there cited. If found on the inclosed lands of another, or those not inclosed as required by the statute, they are not trespassers. The owner of the land may drive them off and use all proper or necessary means to do so, or may take steps to prevent their ingress, without being liable to complaint by the owner of the cattle. Clark v. Adams, 18 Vt., 425" court="Vt." date_filed="1846-03-15" href="https://app.midpage.ai/document/clark-v-adams-6573427?utm_source=webapp" opinion_id="6573427">18 Vt., 425; Humphreys v. Douglass, 10 Id., 71; S. C., 11 Id., 22; Lords v. Wormwood, 29 Ma., 282; 1 Hill. Torts, 558, 559; and see, Carruthers v. Hollis, 8 A. & E., 113. But though they are not trespassers, we are
This right to drive off or prevent the ingress of cattle upon grounds not sufficiently inclosed, does not, however, authorize the owner of the land to drive them into an inclosure properly fenced, whether he gets them there by tearing or letting down the fence, or through a gateway leading into the same. He may remove them from hia own land, but must not, in so doing, make them trespassers upon the possession of another. See Gardner v. Rowland, 2 Ired., 247.
Cattle, then, being free commoners, and being upon lands not properly inclosed, and there because of the negligence and carelessness of the owner of the land, in leaving open the gate leading from the common to the inclosure; suppose such owner willfully leaves open a gate leading from his inclosure to the inclosure of another, and the cattle pass through this gate and are injured, without the fault of the last owner, is the party guilty of this willful act liable ? It seems to us he is, and that the demurrer in this case should,,therefore, have been overruled.
If these cattle were improperly upon the track, and they were injured without the fault of the company, the'railroad would not be liable. And aside from some act or omission of the company subsequent to their getting upon the track, the loss would either fall upon the owner of the cattle or the person on account of whose act or omission they were improperly allowed to thus trespass. The loss should not, reasonably, fall upon the owner, for he was guilty of no wrong. In fairness and justice, it should fall upon the defendant, for he willfully left open the gate through which they passed on to the track. The act was mischievous, at least, if not illegal. From the known
It must be borne in mind that the policy of the statute in requiring the company to fence its road, or in imposing penalties under certain circumstances for failing to do so, is not to secure a fence between the line of the road and the adjoining proprietor, nor for-his protection alone, but to prevent the stock of persons generally from passing on to the road, where it is in constant danger of injury. It is a regulation for the benefit of the public, and not for the land owner only. Then again as the company is required to fix a crossing for the proprietor, where the road runs through his land, the obligation to provide or allow to be provided an entrance thereto, when the fence on each side is made, would seem necessarily to follow.
Reversed.