Coor v. . Rogers ( 1887 )

MebjriMON, J.,

(after stating the facts). The statute (Acts 1885, chs. 115,192 and 287,) provide that live stock, including swine, shall not be allowed to run at large within the limits of Goldsboro township, in the county of Wayne, and in additional designated adjoining territory therein named. To this end, it is likewise provided further, that certain commissioners named shall cause to be built a sufficient fence around the territory mentioned, and gates erected across all the highways leading into the same, for the purpose of preventing-live stock outside of such enclosure from intruding upon and running at large inside of it. It is expressly provided further, that the statute referred to shall not take effect and authorize the taking aud impounding of such stock, and the collection of fines and costs in respect thereto, until the fence provided for shall be built, and notice thereof given as-prescribed.

It is further provided : “After said committee shall have reported the completion of said fence, said fence shall be under the control and management of the board of commissioners, and they shall discharge, with reference to said fence and the territory therein embraced, all the duties prescribed in chapter twenty of The Code, relating to territory where a stock law prevails.” And the statute (The Code, §2826, vol. 2, ch. ■20,)thus referred to, provides that “the board of commissioners of the county may * * * make all regulations and do all other things necessary to carry into effect the provisions of this -chapter relating to the stock law.”

It thus plainly appears, that the statutes first above cited, were to have effect only when the fence should be built, and that there was no purpose to prevent live stock from running at large ouside of the territory enclosed. It also appears, if not in terms, certainly by reasonable and necessary implication, that the county commissioners shall keep the fence in reasonable repair, and make appropriate regulations ; that is, appoint suitable agents, and raise money as allowed by law, and do other needful things for that purpose. The nature of the purpose suggests and requires that the fence shall he kept continually in repair, in order that the law may be continually operative and effectual.

Generally, such stock are allowed to run at large in unenclosed territory. If the fence is allowed to become ruinous and the gates to be thrown down and remain so, then cattle may wander inside of the enclosure unrestrained, and if they should, in such case, the owner thereof would not be liable to have them taken up and impounded, nor would he be liable for charges and costs in respect thereto, because the •statute does not create such liability when the fence is so out of repair. When this is permitted, the county commissioners and their agents are in default, and not the owner of the stock straying at large; the owner is not bound to keep his stock confined, and thus keep them outside of the enclosure, nor to keep the fence in repair. The statute, properly interpreted, does not so require, and it would be palpable injustice to require the owner of stock running at large, to be liable for costs and charges because of no default of his own, but that of the county commissioners or their negligent agents. The liability would not arise unless the fence or gate where the stock passed inside the enclosure was in reasonable repair. The presumption of fact is, that the fence is in repair, and the burden is on the party charged to show the contrary. If the fence is in repair, and vicious, mischievous stock shall break through or get over it, then the owner would be liable. Such animals should not be allowed to run at large.

If the fence or gates shall be out of repair, and as a consequence, stock shall wander inside of the enclosure, they should be gently driven outside, without injury, or the owner should be notified to take them out; and this is so, because of the default of the county commissioners, or their agents, and the owners are not in default.

It is important that the fence and gates shall be kept in repair. Otherwise, each owner of land inside of the enclosed territory will be exposed to annoyance and injury from intruding stock that cannot be taken up and impounded at the cost of the owners thereof. Every such owner of land has therefore a direct interest that prompts him to see that the county commissioners and their agents discharge their duties in respect to such fence and gates faithfully.

We are, therefore, of opinion that the Court erred in refusing to admit the evidence offered by the appellant on the trial in respect to the alleged ruinous condition of the fence and gate.

The instructions given the jury were likewise erroneous. The Court should have told them in substance, that if the fence and gate were in reasonable repair, and in that case, the hogs got through or over them, the plaintiff, although the owner of them, would not be entitled to have possession of them until he had first paid the costs and charges of taking them up and impounding them; that, however, if the fence and gate were out of repair, as alleged by the plaintiff, then he would be entitled to recover the possession of his hogs, although he had not paid the costs and charges demanded by the defendant.

The plaintiff is entitled to a new trial, and we so adjudge. To that end, let this opinion be certified to the Superior Court according to law. It is so ordered.

Error. Reversed.