McKenzie v. Newton , 89 Ark. 564 ( 1909 )

Wood, J.,

(after stating the facts). The ordinance of the city of Ft. Smith authorizing the impounding of animals therein enumerated when “found running at large within the city limits as specified” is a valid police regulation. Ft. Smith v. Dodson, 46 Ark. 296. The legislative sanction for such ordinances is contained in sections 5450, 5451, Kirby’s Digest. The court in Benton v. Willis, 76 Ark. 443, held that both of. these sections were in force, the former giving in general terms the power to impound, and the latter prescribing the method of procedure. Instruction numbered four was erroneous. Under this instruction appellee could recover if he exercised ordinary care in restraining the animal, and if the animal escaped without fault on his part, and he made a diligent search for it. Under the statute (sections 5450 and 5451), the animals are “running at large” if they are within the corporate limits without being under the control of any one. See Clarendon v. Walker, 72 Ark. 8; Benton v. Willis, 76 Ark. 443. And the -city officers, designated for the purpose, are authorized, when such is the case, to impound them, regardless of whether or not the owner was at fault in permitting their escape or in not making diligent search for them thereafter.

We held in Benton v. Willis, supra, that a person living outside the town limits having stock taken up under the ordinance, had the right to the possession of same upon demand made. within twenty-four hours, without paying any fee for impounding same. Here the owner, appellee, although notified, did not make demand for his bull within the twenty-four hours prescribed by the statute. This must be the time under any ordinance within which the owner of animals impounded under authority of sections 5450 and 5451 supra shall demand same before he can recover without the payment of the actual expenses incurred in taking care of them. The facts in this case made it incumbent upon the owner, before he could recover his bull, to pay the actual expenses incurred in taking care of him. See White v. Clarksville, 75 Ark. 340.

The officer could only charge the amount prescribed by the ordinance “for keeping” of such animal.

The instructions of the court numbered two and four were therefore erroneous. Number five was not objected to. The verdict was not sustained by' the evidence. The judgment is therefore reversed, and the cause remanded for new trial.