29 Iowa 437 | Iowa | 1870
Upon the facts found, the judgment should have been for plaintiff.
As defendant did not have a lawful fence, there can be no pretence that he could distrain the mules as trespassing animals. Indeed, the judgment of the court below, is not placed upon this ground, but upon defendant’s right to hold the property, under the estray laws of the state. The statute is, that an unbroken animal shall not be taken between the first days of May and Nov., unless found within the lawful enclosure of the party taking it up, and that if any horse, mule, &c., liable to be taken up, come upon any person’s premises, any other person may notify him of the fact, and if he fail to take up such estray, for more than five days after such notice, any other householder in the same township may take up such estray, and proceed as if upon his own premises. (Laws of 1862, ch. 102, secs. 1 and 2, 182.)
These animals were broken, and the only question is-whether they were liable to be taken up. We answer certainly, not by defendant, for he knew their owner. They were upon the adjoining common with other animals during the summer feeding, had frequently been
The act of 1864, ch. 65, p. 72, “to prohibit certain male animals from running at large,” allows their distraint, as well where the owner is known, as where he is unknown. Such animals are not free commoners, and if found at large, they may at once be distrained; not so, however, with other animals. They may lawfully run at large, their owners being liable for trespass, upon provisions lawfully ordered. They may also be taken up as strays, but not by one knowing the owner, as in case of such animals running at large.
In support of these propositions, certainly plain in them
Beversed.