Northcott v. Smith

The only question presented by learned counsel is whether the common law right to distrain animals taken damage feasant is in force in this state.

Counsel for plaintiff in error insists that the right exists and is in full force in Ohio.

Counsel for defendant in error does not contend that if the common law right to distrain is in force in this state, that the • plaintiff brings himself within the rule as it exists at common law, but insists that the common law right is not in force in this state.

By the common law, if the cattle of one man stray upon the land of another, thereby causing him damage, he may distrain and hold them until the damage is estimated and satisfied. The distress consists in taking the animals into custody while they are still upon the lands and impounding them until satisfaction is made. For the protection of the owner, notice to him of the distress is required, and if compensation is not agreed upon, disinterested appraisers are chosen to assess it. The detention of the animals is only for the purpose of indemnity, and they must be surrendered when satisfaction is made.

If this be the law in Ohio now, it has been since the first settlement of the state, and yet we find no reported case in *568which it has been asserted or claimed to exist. All ¡kinds of stock not known to be breachy and unruly, or dangerous, have been allowed at all times, and in all parts of the state, to run at large, and the common understanding upon which the people of this state have acted since its" first settlement, as well as the statutory regulations until a very recent period, has been that the owner of land was obliged to inclose it; and that without a lawful fence he could not, as against animals not known to be breachy, maintain an action for trespass thereon against the owner of such trespassing animals.

In the case of Kerwhacker v. The Railroad Co., 3 Ohio St. 172, it is said the common law has been l< recognized as a rule of decision in our courts, in the absence of legislative enactments, so far as its rules and principles appeared to be based on sound reason, and applicable to our condition and circumstances. The common law has no authority in Ohio, except so far as it derives authority from judicial recognition in the practice and course of adjudication in our courts; and this extends no farther than it illustrates and explains the rules of right and justice as applicable to the circumstances and institutions of the people of the state.”

The case of Phelps v. Cousins, 29 Ohio St. 135, decides that “ a part owner of a partition fence who fails to keep in repair the part assigned to him, whereby stock from the adjacent inclosure breaks and enters upon his lands, is without remedy. If the stock doing damage in such case he breachy, or unruly, the party damaged, in order to recover therefor, must show that the defect in his part of the fence was not the proximate cause of the damage.”

In Cooley on Torts, page '58, it is said: “ The right to dis-train cattle damage feasant may be affected by statutory regulations making it the duty of the owner of the land to inclose his premises with a fence sufficient for their protection. Where adjoining owners are required by law to construct and maintain respective^ a certain portion of the partition fence between them, and one neglects this duty, and the cattle of the other enter his premises in consequence, he is precluded from maintaining an action because the default from which the injury flows is his own.”

The case of Dickson v. Parker, 34 American Decisions, 78, decides the right to distrain cattle damage feasant does not exist unless the owner of the cattle would be liable to an action. And that where the enclosure was not a sufficient one under the law, the owner of the close had no authority to take the means of redress into his own hands and distrain for any injury he may have sustained in consequence of such insufficiency.

At common law the liability of the owner is complete, and attaches when the animal is found trespassing on the land of another, and the only question is the amount of damage committed, and to secure its payment he may distrain.

In Ohio, under the former and present statutes, the owner was and is not liable to the landowner for the trespass of his animals, if the premises were not enclosed by a lawful fence; or if stock break and enter over a partition fence, of which the person claiming damages be a part owner, he must, to recover, show that he kept in repair the portion of the fence assigned to him. Or, if the stock doing the damage be breachy or unruly, the party damaged, in order to recover therefor, must show that the defect in his part of the fence was not the proximate cause of the damage.

.At common law all that was required to fix the liability of the owner was the trespass. But in this state other facts must be shown to fix his liability, and involving questions which he has the right to have submitted to and passed upon by a proper judicial tribunal, before he is compelled to respond in damages.

We are of opinion that the right of the landowner to dis-train and hold animals found trespassing upon his land until the damages are paid, as at common law, does not prevail in this state.

Judgment affirmed.