Stone v. Donaldson , 1 Pin. 393 ( 1844 )

Miller, J.

The defendant in error originally instituted this action of trespass before a justice of the peace of Milwaukee county. The defendant appealed to the district court of said county, where a verdict and judgment were rendered against him. _ The trespass complained of-was the breaking plaintiff’s close, and destroying his corn, by defendant’s cattle. At the trial conflicting evidence was given respecting the height of plaintiff’s fence, the question being whether it was four and one-half feet high.

The court was requested to charge the jury: “ That if they believed that, at the time of the alleged trespass, the fence inclosing the plaintiff’s field was less than four feet and one-half high, then said fence was not a legal fence, and by law the plaintiff could not recover. ’ ’ This instruction was refused by the court, and the defendant assigns this as the only error on which he relies in this court. Two other assignments of error were abandoned by the counsel, and consequently, do not require any consideration.

This instruction was asked for, on the supposition that the “act concerning fences and fence-viewers” and the “act to permit certain animals to run at large,” on pages 114 and 117 of the statutes, were in force in Milwaukee county; but such is not the case. “An act to provide for the government of the several towns in this Territory, and for the revision of county government,” approved Feb. 18, 1841, is in force in said county. The third section of chapter 3 of said act allows to the electors of each town, among other things, at their town meetings, power “to make such rules and regulations for ascertaining the sufficiency of all fences in such town ; for determining the time and manner in which cattle, horses, sheep or swine shall be permitted to run at large,” etc. By this act the legislature conferred the control of this subject upon the people, and thereby, the acts referred to in the Revised Statutes have been annulled. The acts referred to are annulled or virtually repealed, whether the towns should ever act upon the subject or not. They may do it or not, at their pleasure, and where no regulation has been made according to the provisions of the act of February, 1841, the citizens are not restrained of their common law rights or remedies. Bush v. Brainard, 1 Cow. 78.

In this decision of the district court there was no error, and the judgment must be affirmed, with costs.