Darby v. Missouri, Kansas & Texas Railway Co.

This is an action for double damages, under section 2611, Revised Statutes 1889, commenced be*392fore a justice of the peace iu Howard, county, taken thence by appeal to the Howard Circuit Court, where the plaintiff had judgment for $60, double the value of corn destroyed by hogs entering his inclosed field from defendant’s adjoining right of way, between the first of June and the first of December, 1896, by reason of. defendant’s defective fence. The case reached this court by appeal in the .same manner and for the same reasons as the case of Kingsbury v. Railroad, 156 Mo. 319; in the opinion in which, all the questions raised in this case are disposed of adversely to defendant’s contention,except one, as to which it is only necessary to say that:

(1) The wrong complained of and proven in this cause, was the failure of defendant to maintain its fence as required by the statute during the period aforesaid. The damages proven was the injury -to plaintiff’s crop of corn by incursions of hogs at divers times during that season. The damage was continuous with the wrong, not susceptible of division, either as to quantum or date, and the' court did not err in permitting a recovery of the whole damage in one count. [Steiglider v. Mo. Pac. Ry. Co., 38 Mo. App. 511.] And this point must also be- ruled against the defendant.

The judgment of the circuit court is affirmed.