Wells v. Beal, 9 Kan. 597

Wells v. Beal

9 Kan. 597 | Kan. | 1872

The opinion of the court was delivered by

Brewer, J.:

This was an action for damages done by hogs breaking through a fence into an inclosure and destroying a crop. A general verdict was returned for defendant in error, plaintiff below. (Special facts were also found. The general verdict must stand unless the special facts are inconsistent therewith. The hogs were suffered to run at large in a township in which the hog-law had not been -by vote of *600the people suspended. The fact found which is supposed to be inconsistent with the general verdict is, that the fence around the inclosurc vas insufficient, and not a legal fence. Wc do not consider this' inconsistent, and therefore the verdict must stand. Whatever may be the rule in. the case of damage done by neat cattle or sheep, or by hogs in a township Avhere the hog-law has been suspended, wc think that the insufficiency o'f the fence is no defense to this claim for damages. The common law required every man to take care of his own stock, and suffered none to run at large, except at the peril of the owner. Our statute re-enacts the common law as to hogs, though giving to each township the right by a vote to suspend this law. Ch. 105, §7, Gen. Stat., 1011. The fence law seems impliedly to authorize cattle to roam at large, but this implication cannot outweigh the express prohibition of another statute. The case of Larkin v. Taylor, 5 Kas., 433, is not in conflict with this, for there no question was raised as to the liog-law, and the damages were done by horses and neat cattle. The case of Rollins v. The U. P. Rly. Co., 5 Kas., 167, recognizes this distinction. This also disposes of the question raised by counsel as to the failure to apply to the fence viewers for an assessment of damages.

The judgment will be affirmed.

All the Justices concurring.