Hunke, Maurice R.

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North Dakota Law Review Volume 38 Number 2 Article 11 1962 Animals - Actions for Damages - Recovery for Depredations of Bull Negligently Allowed to Run at Large Maurice R. Hunke Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Hunke, Maurice R. (1962) "Animals - Actions for Damages - Recovery for Depredations of Bull Negligently Allowed to Run at Large," North Dakota Law Review: Vol. 38 : No. 2 , Article 11. Available at: https://commons.und.edu/ndlr/vol38/iss2/11 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. RECENT CASESANIMALS-ACTIONS FOR DAMAGES-RECOVERY FOR DEPRE-DATIONS OF BULL NEGLIGENTLY ALLOWED TO RUN AT LARGE-Plaintiff owned a herd of registered Aberdeen Angus cows in apasture directly across the road from where defendants' com-mercial Hereford cows and three bulls were pastured. The loca-tion was a "stock restricted area" in which an owner of live-stock is prohibited from negligently allowing his stock to, runat large.1 The defendants' bull broke out of the defendants' pas-ture and into the plaintiff's. There he fought with the plain-tiff's bull and inflicted such injuries as necessitated its subse-quent destruction, a loss to plaintiff of $3,000. Plaintiff suffer-ed a further loss of $4,500 in that seven "ill-bred calves" wereborn to his registered cows as a result of the trespass of the de-fendants' bull. Plaintiff brought action to recover those lossesand the trial court entered judgment for defendants. In af-firming that judgment the Supreme Court of Washingtonheld that, under the applicable statute,2 it was insufficient toprove merely that cattle were running at large in a stock re-stricted area, but rather, proof of negligence was a necessaryelement in establishing liability of defendants for trespass oftheir bull upon plaintiff's land. Bly v. McAllister, 364 P.2d 500(Wash. 1961).In the law of an owner's liability for trespassing animals, theinstant case and the statute it construes represent another de-gree in an evolution which has nearly completed a circle. Atcommon law an owner of domestic animals had an absoluteduty to keep them contained within his own premises and hewas strictly liable for their trespasses on another's land if hefailed to do so. 3 An obligation rested on the owner to fence inhis stock and no burden was imposed upon his neighbor tokeep them out.4 Also under common law every property own-er's land was regarded in law as enclosed, regardless of fact,1. Wash. Rev. Code § 16.24.065 (1957) "No person owning or in con-trol of any livestock shall willfully or negligently allow such livestock torun at large in any stock restricted area, nor shall any person owning orin control of any livestock allow such livestock to wander or stray uponthe right-of-w-ay of any highway lyWing within a stock restricted area whennot in the charge of some person."2. Ibid.3. Barnes v. Pleasonton, 73 A.2d 787 (Del. 1950); McKee v. Trisler, 311Ill. 536, 143 N.E. 69 (1924); Raziano v. T. J. James & Co., 57 So. 2d 251 (La.1952); Pongetti v. Spraggins, 61 So. 2d 158 (Miss. 1952); Cox v. Burbidge, 13C.B.N.S. 430, 143 Eng. Rep. 171 (1863) (dictum).4. Raziano v. T. J. James & Co., 57 So. 2d 251 (La. 1952).RECENT CASESand when another's livestock broke the enclosure that otherwas liableAIn the United States many western jurisdictions developeda rule which was the antithesis of the common law.0 The vastareas of valuable grazing land, its greater proportion to arablesoil, and the general economic importance of the cattle in-dustry contributed to the creation of a rule that propertyowners must "fence out" livestock by construction of an en-closure deemed sufficient in law.7 In holding that the ownersof cattle may allow them to range at will, the Supreme Court ofColorado stated in the 1880 case of Morris v. Fraker : "...(The common law rule) is wholly unsuited and inapplicable tothe present condition of the State and its citizens." 9 The Su-preme Court of New Mexico recently held that, where therunning of livestock is lawful, it is the duty of the owner ofproperty to enclose it should he desire to keep roaming stockoff premises.10As the rangeland became settled and more land was brokenfor crops, the reasons for rejection of the common law ruledisappeared. Consequently, some states have restored the ef-fect of the common law by prohibiting the roaming of cattleat large and making owners liable for damages resulting fromtheir failure to restrain their animals.! ' Legislative enactmentswhich require an owner to "fence in" his animals can bebroadly categorized into two groups: (1) those which makeit unlawful for an owner to "permit" or "allow" his animalsto run at large 12 and (2) those which prohibit the owner fromwillfully or negligently permitting his animals to run atlarge.13 A third group of judicial decisions holds that mere5. Van Gorder v. Eastchester Estates, 137 N.Y.S.2d 789 (1955) (dictum).6. See, e. g., Morris v. Fraker, 5 Colo. 425 (1880); Beinhorn v. Griswold,27 Mont. 79, 69 Pac. 557 (1902); Delaney v. Errickson, 10 Neb. 492, 6 N.W. 600(1880) Rev'd on rehearing on other grounds in 10 N.W. 451 (1881).7. See, e. g., Morris v. Fraker, 5 Colo. 425 (1880); Beinhorn v. Griswold,27 Mont. 79, 69 Pac. 557 (1902); Delaney v. Errickson, 10 Neb. 492, 6 N.W. 600(1880); Kerwhacker v. C. C. & C. Ry. Co., 3 Ohio St. 172 (1854) "If an actionfor damages be maintainable -for every instance in which the cattle andother livestock of a person go upon the uninclosed lands of another, with-out express license, more than nine-tenths of 'the business men of theState become for this cause, tort feasors every day of the year, and liableto suit for damages."8. 5 Colo. 425 (1880).9. 11d. at 428.10. Stewart v. Oberholtzer, 57 N.M. 253, 258 P.2d 369 (1953).11. See, e. g., Phillips v. Bvnum, 145 Ala. 549, 39 So. 911 (1906); PuckettV. ioung, 112 Ga. 578, 37 S.E. 880 (1901); Gumm v. Jones, 115 Mo. App. 597.92 S.W. 169 (1906). See PROSSER, TORTS § 57 (2d ed. 1955).12. See, e. g., Va. Code § 8-886 (1950) "It shall be unlawful for the owner... of any horse, mule, cattle, hog, sheep, or goat, to permit any such animal•..to run at large .... "113. See, e. g., Wash. Rev. Code § 16.24.065 (1957 "No person owning orin control of any livestock shall willfully or negligently allow such live-stock to run at large ....1962]NORTH DAKOTA LAW REVIEWproof of the running at large raises a presumption of negli-gence on the part of the owner.14It has been early established that a plaintiff may recoverdamages for such harms as were alleged in the instant casei e., (1) injuries inflicted in a fight with plaintiff's animal 5and (2) the "misalliance"'16 of an inferior bull with a pedigreedcow."' In the latter case the usual measure of damages is thedifference in value of the cow before and after the impregna-tion."'The law in North Dakota on the liability of an owner for thetrespass of his livestock is presently governed by statute: "Nocattle, horses, mules, swine, goats, or sheep shall be permittedto run at large."' 9 At one time it was lawful for livestock torun at large during a season of the year when they would beunlikely to damage growing crops. 20 However, as early as 1892the North Dakota Supreme Court declared the common lawrule to be in effect in the State.21The development of the law relating to an owner's liabilityfor the trespass of his animals is strongly indicative of thefact that the law is not static, but rather, is readily adaptableto the conditions and circumstances of the time.MAURICE R. HUNKECONSTITUTIONAL LAW - DUE PROCESS - HEARING BEFOREEXPULSION FROM STATE SUPPORTED COLLEGE - Plaintiffs,while attending a state supported college, were expelled forreason of misconduct by the President of the institution on therecommendation of the State Board of Education. Plaintiffs14. Brotemarke v. Snyder, 99 Cal. App. 2d 388, 221 P.2d 992 (1950); Fall-on v. O'Brien, 12 R.I. 518, 34 Am. Rep. 713 (1880).15. Houska v. Hrabe, 35 S.D. 269, 151 N.W. 1021 (1915).16. Kopplin v. Quade, 145 Wis. 454, 130 N.W. 511, 512 (1911) (The opinionis a classic example of legal humor on the subject).17. Crawford v. Williams, 48 Iowa 247 (1878) (dictum); Kopplin v. Quade,145 Wis. 454, 130 N.W. 511 (1911).18. Madison v. Hood, 207 Iowa 495, 223 N.W. 178 (1929); Crawford v.Williams, 48 Iowa 247 (1878). In 34 Iowa L. Rev. the general rule as tothe measure of damages is criticized as being inadequate In that it maynot permit recovery of the difference in value of the resulting in-ferior calf and a purebred eligible for registry.19. N.D. Cent. Code § 36-11-01 (1961).20. N.D. Rev. Code § 1549 (1899) "It shall be lawful for cattle, horses,mules, ponies and sheep to run at large from the first day of Novemberuntil the first day of April of each year. ....21. Bostwick v. Railway Co., 2 N.D. 440, 51 N.W. 781, 783 (1892) "Inthis state ... The common law rule is in force, and every man is bound, athis peril, to keep his stock upon his own premises, and is liable for all dam-age done by such stock upon the lands of another, whether fenced orunfenced." See also, Schneider v. Marquart, 45 N.D. 390, 178 N.W. 195 (1920)for a discussion of the Bostwick case and a general historical summary ofthe law on the point up to 1920.[Vol. 38

Animals - Actions for Damages - Recovery for Depredations of Bull Negligently Allowed to Run at Large

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Animals - Actions for Damages - Recovery for Depredations of Bull Negligently Allowed to Run at Large

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