#### John H. Daniels v. Frederick Aholtz.

Trespass—license from one occupant of a common inclosure no protection against suit by other occupant. Where two persons occupy adjoining lands, inclosed with one fence and forming one field, and one of them authorizes a third person to turn cattle into the inclosure, representing to such third person that he owns the whole, and the cattle go upon the land of the other occupant, the party turning them in is liable in trespass for all damage done by the cattle, notwithstanding he may have believed that the occupant giving him the license had full authority so to do.

*441Appeal from the Circuit Court of Hacon county; the Hon. C. B. Smith, Judge, presiding.

Mr. W. C. Johns, for the appellant.

Mr. J. S. Post, for the appellee.

Mr. Justice Dickey

delivered the opinion of the Court:

Aholtz and one Prather each owned and occupied a tract of arable land. The tracts adjoined each other and were inclosed by a fence, both tracts constituting one field or inclosure. In 1874 each of these proprietors cultivated his land in corn. In the fall of 1874, after Prather had gathered his corn from his part of the land, he showed the field to Daniels, claimed to own all the stalks in the inclosure, and sold the same to Daniels for $60, upon condition that Daniels might turn cattle into the field to feed upon the stalks.

At this time, Aholtz had not gathered his corn from his side of the field, and Daniels had no knowledge that any one but Prather had any interest in the corn or stalks raised in the field that year.

In this state of affairs. Daniels brought cattle and turned them into the field, and they strayed upon Aholtz’ part of the field and destroyed part of his corn. At the time Daniels turned in his cattle, Prather told him there was still some corn in the field, which would be removed in a few days, and he would have the cattle kept off the corn until removed. Daniels assented to this, supposing the ungathered corn to belong to Prather.

Aholtz sued Prather and Daniels in trespass, and recovered judgment against both, from which Daniels appeals to this court, and insists that, under the proof, he was not a trespasser. This position can not be maintained. He turned his cattle upon Prather’s part of the field, and they strayed, without the fault of Aholtz, upon his possesssion and did him damage. The license of Prather, who had no lawful authority to give license, can not protect him.

The judgment must be affirmed.

Judgment affirmed.