3 Iowa 396 | Iowa | 1856
Appellant first claims, that there was error in rendering final judgment on the demurrer, for the reason that it was to the whole answer, and should have been overruled, as to so much as denied, or took issue upon the material allegations of the petition. This objection would be clearly good, but for the fact that the record in substance shows that this part of the answer was abandoned. An examination of the judgment satisfies us, that the defendant relied upon his special grounds of defence, and admitted that if these were not good, he could not gainsay plaintiff’s right •to recover. By this admission, he must be bound.
There is then but one question in the case, and that is, whether the defendant for the reasons stated in his answer, was entitled to the possession of the property, as against the plaintiff and owner. We are of opinion that he was not, and that the demurrer was therefore properly sustained.
That at common law, every man was bound to keep his cattle within his own close, under the penalty of answering in damage for all injuries arising from their being abroad, is admitted by all. And a part of the same rule is, that the owner of land, is not bound to protect his premises from the intrusion of the cattle of a stranger, or third person; and that if such cattle shall intrude or trespass upon his premises, whether inclosed or not, he may, at his election, bring his action to recover the damages sustained, or distrain such trespassing animals, until compensated for such injury. We need not at present stop to ascertain the origin or reason of this rule. It is sufficient to say, that as a principle of the common law, it is well, and we believe universally settled. We are then led to inquire, whether independent of any statutory provisions, this rule is applicable to our condition and
Unlike many of the states, we have no statute declaring in express terms, the common law to be in force in this state. That it is, however, has been frequently decided by this court, and does not, perhaps, admit of controversy. But while this is true, it must be understood that it is adopted only so far as it is applicable to us as a people, and may be of a general nature. At this time, we need only discuss the question, whether the principle contended for, is applicable ? for there can be no fair ground for claiming that it is not of a general nature.
We have assumed, that it is only so much of the common law as is applicable, that can be said to be in force, or recognized as a rule of action in this state. To say that every principle of that law, however inapplicable to our wants or institutions, is to continue in force, until changed by some legislative rule, we believe has never been claimed, neither in; deed could it-be, with any degree of reason. What is meant however, by the term applicable, has been thought to admit of some controversy. As stated by Catron, J., in the dissenting opinion in the case of Seely v. Peters, 5 Gilm. 130 ; “ does it mean applicable to the nature gf our political institutions, and to the genius of our republican form of government, and to our constitution, or to our domestic habits, our wants, and our necessities?” He then maintains that the former only is meant, and that to adopt the latter, is a clear usurpation of legislative power by the courts. A majority of the court held in that case, however, as had been previously decided in Boyer v. Sweet, 3 Scam. 121, “ that in adopting the common law, it must be applicable to the habits and condition of our society, and in harmony with the genius, spirit, and objects of our institutions.” And we can see no just or fair objection to this view of the subject. Indeed, there would seem to be much propriety in saying, that the distinction attempted, is more speculative than practical or real. Eor what is applicable to our wants, habits and necessities as a community or state, must necessarily to some ex
But, however this may be, we do not believe that in determining as a court, whether a particular rule of the unwritten law is applicable, we are confined alone to its agreement or disagreement, Avith our peculiar form of government. To make the true distinction between the rules which are, and are not, applicable, may be frequently embarrassing and difficult to courts.
Where the common law has been repealed or changed by the constitutions of either the states or national government, or by their legislative enactments, it is of course, not binding. So also, it is safe to say, that where it has been varied by custom, not founded in reason, or not consonant to the genius and manners of the people, it ceases to have force. Bouvier’s Law Diet., title Law Common. And. in accordance with this position, are the following authorities : “ The common law of England, is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they broughtwith them and adopted only that portion which was applicable to their situation.” Van Ness v. Packard, 2 Peters, 137. And see other remarks of the learned j udge, in delivering the opinion in that case, page 143, which have a bearing upon the principal question involved in this.
In Ohio, the rule is laid down as follows: “It has been /repeatedly decided by-the courts of this state, that they will adopt the principles of the common- law, as the rule of decisión, so far only as those principles are adapted to our circumstances, state of society., andform of government." Lindsley v. Coats, 1 Ham. 243 ; see also Penny v. Little, 3 Scam. 301.
Is-the rule of the common law, relied upon by the appellant in this case, applicable to our situation, condition, and usage, as a people ? Is it in accordance with our habits, wants, and necessities ? As applied to this state, is it founded in" reason and the fitness, of things ? The legislature has certainly not so regarded it. On the contrary, we hope to be able to show, that what legislation we have, clearly recognizes the opposite rule. Alt present, we are considering the question without reference to any legislative interpretation or action.
These same inquiries were substantially discussed in the case of Seely v. Peters, above referred to; and as we could not hope to answer them more satisfactorily than is there done, we adopt the language used in that case, the appropriateness of which, as applied to this state, will be fully appreciated, when we reflect that in their resources and’necessities, Illinois and Iowa, are almost twin sisters. Both alike are agricultural states — both alike have large and extensive prairies- — -and are alike destitute of timber, as compared with the,eastern and older states .of the Union.
The learned judge then proceeds to show, that it is not necessary to assume that ground in the case before him, for the reason, as he says, that their entire legislation, clearly shows that this rule of the common law never prevailed in that state. In like manner, we now propose to refer to some of our own legislation: which we think, will clearly show, that it was never supposed to prevail in this state. ^ And in doing so, we shall confine ourselves to the Code and the laws passed subsequent thereto ; for up to that time, we believe it to be conceded, that this rule of the common law did not obtain in Iowa.
Chapters 52 and 53 of the Code, relate to the rights and duties of adjoining owners, in building and keeping up partition fences, and the right of a party to recover damages, where the trespassing animal enters upon the injured land, from an adjoining close. Nothing is said as to the duty of the party to keep a fence against trespassing animals, not upon an adjoining inclosure. Neither by the Code, have we any definition of a lawful fence. The only provision that seems to bear upon the question, is' to be found in section 114, which gives the county judge the power to submit toThe people of his county, the question, “ whether stock shall be permitted to run at large, or at what time it shall be prohibited ?”
By chapter 105, Laws of 1853, however, a lawful fence is particularly described and specified. And this chapter has, beyond doubt, reference to the outside fences of an inclosure, as contradistinguished from the partition fences which are provided for by the Code. Any comment upon the object and purpose of this statute, we will reserve until we have referred to others, which we think have a legitimate bearing upon the question before us. Chapter 104 of the same laws, relates to the taking up of “ water crafts, lost goods, and es-
J This brief reference to these several acts, must be sufficient, in our opinion, to satisfy any mind that the legislature never understood that the rule of the common law prevailed in this state. We do not maintain that these provisions expressly change the common law rule. And did we believe that this principle had, at any time, been well established in this state, we should perhaps hold that it had not been changed by these different statutes. Where, however, it is to say the
Let us ask, upon what other fair hypothesis it is, that a reason can be found for tbe passage of these several acts ? If the common law rule, requiring the owner to keep up his stock prevails, or has prevailed, in this state, where the necessity or propriety of this legislation ? What object could there be in defining a lawful fence, if no man is required to inclose bis cultivated lands ? If no fence is required to keep out stock, why so particular in saying wbat shall constitute a lawful fence ? Again, if no stock are allowed to run at large, wby is it that an estray animal, other than those of a certain kind, cannot be taken up for six months of each year? Can any person for a moment believe, that tbe legislature could liave contemplated tbat it was contrary to law for sucb animals to be out of an inclosure, and at tbe same time pass an act, that they should not be taken up for half of each year?
And again, if the common law rule prevails, why pass two several acts, authorizing the people of Jackson, Jones, and other counties, to determine by an election, wbetber certain animals should, or should not, run at large — and in those acts provide, that if the majority decided against these animals running at large, then the owners were to restrain the tame, but make no provision tbat the owners were to be liable, if the majority should be the other way ? If they were bound to restrain tbe same any how by tbe general law, why these special statutes? And with how much force does the argument derived from these laws, apply to the case before us, which arose in Jones county, one of the counties named in the act of 1851 ? Why pass this law for the benefit of the county, if already the general law was, as is claimed by
Judgment affirmed.