29 Iowa 115 | Iowa | 1870
Plaintiff and defendant were owners of adjoining lands, which were inclosed in common without a partition fence. The defendant had built his portion of the fence where it was agreed between the parties he should build it, and had by himself, and also through the fence viewers of the township, notified plaintiff to build his portion. Afterward, but before the expiration of the time fixed by the fence viewers for plaintiff to complete his part of the fence, the plaintiff turned the cattle in controversy upon his own land, from whence they came upon the defendant’s land. The defendant put them in an inclosure and notified plaintiff thereof, and also that
Upon the trial, the court instructed the jury, substantially, that the defendant had no right to distrain the cattle, unless the plaintiff turned them on his own land willfully toward the defendant; that he must have turned them on his own land “ willfully as well as purposely ” in order to justify them in finding for defendant.
The instructions, in this particular, were misleading and erroneous. The comb evidently intended to say and did say to the jury, that it was not enough to defeat plaintiff’s action that he turned his cattle upon his own land purposely, wherefrom they could without obstruction go, and did go, upon defendant’s land and do him damage ; but it must also be shown that he so turned his cattle there with the intention that they should go upon the defendant’s land and do him damage. The plaintiff, it is true, might use his own land as he pleased, and might pasture his cattle upon the corn and wheat growing there if he chose, and no action by another would lie against him therefor; but if they escape upon his neighbor’s land, inclosed in common with his, and do damage thereon, he is liable therefor ; and, being liable, of course the neighbor has a right to distrain them when doing damage.
The agreement to inclose lands or farms in common, without a partition fence, amounts to a discharge or release, for the time, of each party from all obligation to build or maintain such partition fence. The agreement
Eeversed.