{ "id": 1344008, "name": "Hill v. Gibson", "name_abbreviation": "Hill v. Gibson", "decision_date": "1913-02-24", "docket_number": "", "first_page": "130", "last_page": "136", "citations": [ { "type": "official", "cite": "107 Ark. 130" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "92 Am. Dec. 404", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": -1 }, { "cite": "69 Pac. 1024", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 2229108 ], "opinion_index": -1, "case_paths": [ "/or/42/0114-01" ] }, { "cite": "13 S. W. 937", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "5 Kan. 433", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 76476 ], "opinion_index": -1, "case_paths": [ "/kan/5/0433-01" ] }, { "cite": "47 L. R. A. 588", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": -1 }, { "cite": "22 L. R. A. 105", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": -1 }, { "cite": "21 Pac. 41", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": -1 }, { "cite": "37 Pac. 893", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 2333684 ], "opinion_index": -1, "case_paths": [ "/cal-unrep/4/0819-01" ] }, { "cite": "22 S. W. 300", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "48 Ark. 369", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "46 Ark. 207", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1890463 ], "opinion_index": -1, "case_paths": [ "/ark/46/0207-01" ] }, { "cite": "37 Ark. 562", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871013 ], "opinion_index": -1, "case_paths": [ "/ark/37/0562-01" ] }, { "cite": "89 Ark. 154", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515263 ], "opinion_index": 0, "case_paths": [ "/ark/89/0154-01" ] } ], "analysis": { "cardinality": 570, "char_count": 12738, "ocr_confidence": 0.466, "pagerank": { "raw": 1.7156565212650866e-07, "percentile": 0.7030701403827019 }, "sha256": "d75a32c094f3b500d161db277ebb10580eab8c53b10bde9001d841f61ea632ae", "simhash": "1:b5b76f99ce653532", "word_count": 2211 }, "last_updated": "2023-07-14T20:18:15.327905+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Hill v. Gibson." ], "opinions": [ { "text": "Smith, J.\n(after stating the facts). It appears that at the time of the depredations of defendant\u2019s stock, the fencing district was not enclosed with a lawful fence, and th\u00e1t the gates were down, and, consequently, stock could, come in or go out of the fencing district at will. The court\u2019s instruction, numbered one, and defendant\u2019s instruction numbered two, which was given are apparently in conflict, for this second instruction tells the jury that defendant would not be liable for the damage done by his stock if the fencing district was not enclosed by a lawful fence. Under the evidence, this instruction would have directed a verdict for the defendant, but the jury\u2019s failure to follow it in this case is not prejudicial error for the reason that it is not a correct declaration of the law. The jury evidently followed the court\u2019s first instruction, which is the law. St. L. S. W. Ry. Co. v. Grayson, 89 Ark. 154.\n\u2022 These fencing districts are provided for by law. Sections 1378 to 1413, Kirby\u2019s Digest. These sections provide the procedure for their organization and contemplate that considerable expense will be incurred upon their creation, and provision is made for their maintenance and protection. When the order of the county court is made, the fencing district becomes a permanent entity, until it is dissolved-; but until it is dissolved, the law fixes the rights and liabilities of residents within the district. The petition for the establishment of the district specifies what stock the petitioners wish to restrain from running at large, and when the district is1 established, the court makes an order restraining the stock* mentioned in the petition, from running at large within such district, and the fencing district law applies to all such stock'as are so mentioned. Kirby\u2019s Digest, section 1378. And, thereafter, it is unlawful for any person, owning or having control of stock that has been restrained from running at large, to knowingly permit such stock to run at.large within the territory comprising such fencing district, and any person, who violates the law by so doing, subjects himself to a fine. Section 1405, Kirby\u2019s Digest, deals with the same subject and provides for a double liability for damages done. It is as follows :\n\u2018 \u2018 Sec. 1405. After any fencing district has been inclosed by a good and lawful fence, it shall be unlawful for any person who is the owner, or who has control of any kind of stock, to let the same run at large in said district, and any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction, shall be fined in any sum not less than one nor more than fifty dollars, and, in addition to the above fine, shall be liable for double the amount of any damages that any person may sustain by reason of said stock running at large in said district, to be recovered by action before any court having competent jurisdiction. Provided, this section shall not prohibit any person from fencing his or her lands, or any part thereof, separately, and pasturing the same. \u2019 \u2019\nThe court\u2019s second instruction in effect interprets this section, as if it read, \u2018 \u2018 after any fencing district has been inclosed by a good and lawful fence, and, during the time, the same is maintained, it shall be unlawful, etc.\u201d We do not think it a fair interpretation of the fencing law to say that the order of the court, establishing the district is effective only when the fences are lawful and the gates are closed, but we rather think that after the court has made its order, establishing the district and prohibiting stock from running at large, and after a lawful fence has once been built, that the order remains effective until the district is dissolved.\nAppellant has collected a number of cases, which, in effect, hold that the owner of stock is not liable for the trespasses of his stock unless they enter a close which is enclosed by a fence which the law has said shall be a lawful one, unless the owner wilfully drives his cattle or stock upon such defectively and insufficiently enclosed premises, in which last event, he would be liable without reference to the legal sufficiency of the fence. But it would be abstract to consider here the liability of the owner of stock living without the district for damages for the trespass of his stock upon the lands embraced in a fencing district, enclosed by a fence which was not a lawful one. The defendant here resided in the district, and when he turned his stock loose, they would be unrestrained from entering upon any land Avhere pasturage was good Avithin the district. We conclude, therefore, that the judgment is correct, and it is accordingly affirmed.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "Sellers & Sellers, for appellant:", "No briefs for appellee'filed." ], "corrections": "", "head_matter": "Hill v. Gibson.\nOpinion delivered February 24, 1913.\n1. Fencing districts\u2014damage to crops.\u2014Where plaintiff owns land in a fencing district properly established under sections 1378, et seq. of Kirby\u2019s Digest, defendant is liable to plaintiff for damage done by his stock to plaintiff\u2019s crops, which he permitted to run at large in said district, after a lawful fence has once been built. (Page 134.)\n2. Fencing districts\u2014order of court.\u2014The order of the court creating the district remains effective, until the district is dissolved. (Page 135.)\n3. Appeal and error\u2014harmless error.\u2014When the jury returns a verdict according to the law of the case, the case will not be reversed when an erroneous instruction was given. (Page 134.)\nAppeal from Conway Circuit Court; Hugh. Basham, Judge;\naffirmed.\nSTATEMENT BY THE COURT.\nAppellee sued appellant for damages alleged to have been caused by the trespassing of appellant\u2019s stock upon her crops. The complaint alleges that appellee is the owner of certain lands within Fencing District No. 3, of Conway County; that said district is a legally constituted and existing fencing district of said county, within which it is made unlawful for stock to run at large. That appellant turned his cattle on her crop on her said land to her damage in the sum of one hundred dollars, and she prayed judgment for that sum.\nThe appellant\u2019s answer denied all the material allegations of the complaint, specifically pleading that if said district was otherwise established, it was not unlawful for stock to run at large therein at the times alleged in the complaint, for that said district was not at said time enclosed by a lawful fence.\nWhat amounts to an agreed statement of facts is set out in the bill of exceptions, and is as follows:\n\u201cThe testimony showed the proper orders of the county court for the formation of the fencing district mentioned in the complaint. It also showed that the plaintiff owned land in said district, and for the year. 1911, rented land therein to one W. H. Fancett for $5 per acre, and that some time during the fall of said year, or early winter, the said Faucett sold his crop to the plaintiff in settlement of the rent. The testimony fur-, ther tended to show that the defendant, Boh Hill, had control of land in said district during said year, and made a crop thereon and owned and herded about one hundred head of cattle after his crops were gathered upon the lands cultivated by him and other portions of said fencing district about a mile from the land on which the crop, was claimed to have been destroyed; that some time about the first of February, 1912, about fifteen head of cattle were seen on plaintiff\u2019s land where the crop had been made, and that said cattle were all but one branded \u201cO.\u201d The testimony further shows that defendant\u2019s cattle were branded \u201c0.\u201d The testimony further tended to show that one Bradley had about one hundred head' of cattle in said fencing district herded by the same herder that herded defendant\u2019s cattle. The testimony further tended to show that hogs had ranged in plaintiff\u2019s crop, and that after the crops had been gathered that defendant and said Bradley relieved their herder and permitted the cattle to roam at will in said fencing district, and which was in February, 1912. The testimony further tended to show that the crop on plaintiff\u2019s land had been damaged by stock, but there was no testimony as to whose stock did the damage except that the bunch of about fifteen head were branded \u201c0.\u201d The testimony also tended to show that during the month of January, 1912, cattle branded with an \u201c0\u201d were seen at different times in the plaintiff\u2019s crop.\nThe undisputed testimony showed that the fencing district was not enclosed by a lawful fence, and that on account of gates being down and the fence around said district not being as required by law, cattle and other stock could go in and out of said fencing district during the year 1911, and up until after the alleged injury was committed, at will.\nThe testimony tended to show that the crop had been damaged by stock to tbe extent of tbe verdict rendered by the jury.\nThis was all that tbe testimony established or tended to establish, and was all tbe testimony in the case.\u201d\nOn motion of plaintiff, and over tbe objection of defendant, tbe court instructed tbe jury as follows:\n1. \u201cYou are instructed t|iat if you find from tbe evidence in this case that tbe defendant was herding bis cattle on land in tbe fencing district, or was permitting them to run at large on such land, and they escaped and went upon tbe land of plaintiff inside tbe district and damaged the crop, then you will find for tbe plaintiff, notwithstanding tbe district fence was not a lawful fence and assess plaintiff\u2019s damage at such sum as the-evidence shows was caused by the stock of defendant.\u201d\nAnd refused tbe following instructions asked by defendant :\n1. \u201cYou are instructed to return a verdict for tbe defendant. \u2019 \u2019\n3. \u201cYou are instructed that if tbe defendant had the right to herd bis cattle on portions of tbe district, and they strayed off on plaintiff\u2019s ground for that she could not recover for the injury.\u201d\n4. \u201cYou are instructed that you can not find for tbe plaintiff more than nominal damages, as there is no proof of tbe amount of damages done by defendant\u2019s stock.\u201d\nAnd upon motion of defendant, gave tbe following instructions:\n2. \u201cYou are instructed that tbe undisputed testimony shows that tbe fencing district was not enclosed by a lawful f\u00e9nce at the time of the alleged injury, and you can not find for tbe plaintiff on tbe ground that the defendant permitted bis cattle to run at large inside of a district having a lawful fence.\u201d\n5. \u201cTbe proof shows that tbe land was rented to Faucett for standing rent. For damages to the crop while be owned it, tbe plaintiff can not recover. She can not recover unless you find that she bought tbe crop from Faucett, and then only for such damage as was caused by defendant\u2019s stock after plaintiff bought the crop. \u2019 \u2019\nThere was a verdict for plaintiff for $75 damages, and this appeal was taken from the judgment pronounced thereon.\nWe have been favored with no brief by appellee, but the case has been ably and fairly briefed by appellant, who presents several questions, which have been considered by the court, but which we do not regard necessary to discuss. But the controlling question in the case, and the one upon which appellant chiefly relies for a reversal is the correctness of instruction numbered one (1) given by the court, and the refusal to give defendant\u2019s instruction numbered three. These instructions present the respective theories of the parties to this litigation.\nSellers & Sellers, for appellant:\nThe trespass sued on herein was not committed in a legally constituted and existing fencing district as the proof shows that the district was not enclosed by a good and lawful fence, therefore, appellant is not liable. Kirby\u2019s Digest, Chap. 81.\nThe common law rule as to the running at large of stock has never been recognized in this State, but on the contrary, the courts have recognized the right of stock owners to permit stock to run at large, as well as the corresponding duty of land owners to fence against them, except in sections where, by special enactment a different rule obtains. Kirby\u2019s Digest, Chap. 81; lb. % 1998; 37 Ark. 562; 46 Ark. 207; 48 Ark. 369; 12 A. & E. Enc. (2 ed.) 1041-1042 and note 1.\nIn order to recover for trespass, it must be shown that the appellant wilfully turned his cattle loose upon the enclosed lands. 12 A. & E. Enc. 1045 and note; 22 S. W. 300; 37 Pac. 893; 21 Pac. 41; 22 L. R. A. 105; 47 L. R. A. 588; 5 Kan. 433; 13 S. W. 937; 22 S. W. (Tex.) 300; 69 Pac. 1024; 92 Am. Dec. 404.\nSection 1914, Kirby\u2019s Digest, ceases to.be operative after January 1, as to crops of preceding year, and the trespass alleged in case at bar occurred after that date, and appellant\u2019s request for peremptory instruction should have been granted.\nNo briefs for appellee'filed." }, "file_name": "0130-01", "first_page_order": 148, "last_page_order": 154 }