Lazarus v. Phelps (152 U.S. 81)/Opinion of the Court
But a single error is assigned to the action of the court below, and that is to the charge that defendant was liable to the plaintiff for the value of the use and occupation of the plaintiff's land, if he had in the common inclosure more cattle than were sufficient to consume the grass on the lands leased of the state of Texas by the defendant.

The defendant, upon the contrary, requested the court to charge that 'in Texas the law is that the owner of stock is not required to keep them in an inclosure, or to prevent them from ranging on the land of others; and that the owner of land trespassed upon by cattle cannot recover from the owner of the cattle damages for the trespass, unless his land is fenced;' and, further, 'that, to entitle the plaintiff to recover in this suit, you must believe from the evidence that the plaintiff's lands were fenced from those leased by defendant. If there was a common inclosure around the lands of plaintiff and those leased by defendant, and no fence separating such lands, then the plaintiff cannot recover.' The views of the court below, concisely stated, are contained in the instruction that if the defendant kept the inclosure so overstocked, as plaintiff claimed, then he is liable for the value of the rent of plaintiff's lands. The request of defendant, taken in connection with the instruction given, presents the respective views of the law entertained by counsel upon either side, and upon which the case turned.

The rule of the common law was admitted to be that a landowner is not bound to fence his land against the cattle of others. The owner of such cattle must confine them to his own land, and will be liable for trespasses committed by them upon the uninclosed lands of others. This rule, however, has been modified in Texas by Rev. St. Tex. art. 2431, which enacts that 'every gardener, farmer, or planter shall make a sufficient fence about his clear land under cultivation at least five feet high, and make such fence sufficiently close to prevent hogs from passing through the same;' and by article 2434: 'If it shall appear that the said fence is insufficient, then the owner of such cattle, horses, hogs, or other stock shall not be liable to make satisfaction for such damages.' Construing this statute, the supreme court of Texas held, in Railway Co. v. Johnson, 65 Tex. 389, 393, that: 'Since the fence law of 1840 the owner of uninclosed land has no right of action for the intrusion of stock upon it. * * * The appellee had no right to graze his cattle on these leagues, but in doing so was guilty of no actionable wrong. In letting his stock range on this land, he asserted no right in the land, and acquired none.' See, also, Pace v. Potter, 85 Tex. 476, 22 S. W. 300. This custom of permitting cattle to run at large, without responsibility for their straying upon the lands of others, was also recognized by this court in Buford v. Houtz, 133 U.S. 320, 10 Sup. Ct. 305.

The object of the statute above cited is manifest. As there are, or were, in the state of Texas, as well as in the newer states of the west generally, vast areas of land, over which, so long as the government owned them, cattle had been permitted to roam at will for pasturage, it was not thought proper, as the land was gradually taken up by individual proprietors, to change the custom of the country in that particular, and oblige cattle owners to incur the heavy expense of fencing their land, or be held as trespassers by reason of their cattle accidentally straying upon the land of others. It could never have been intended, however, to authorize cattle owners deliberately to take possession of such lands, and depasture their cattle upon them, without making compensation, particularly if this were done against the will of the owner, or under such circumstances as to show a deliberate intent to obtain the benefit of another's pasturage. In other words, the trespass authorized, or rather condoned, was an accidental trespass caused by straying cattle. If, for example, a cattle owner, knowing that the proprietor of certain lands had been in the habit of leasing his lands for pasturage, should deliberately drive his cattle upon such lands, in order that they might feed there, it would scarcely be claimed that he would not be bound to pay a reasonable rental. So, if he lease a section of land adjoining an uninclosed section of another, and stock his own section with a greater number of cattle than it could properly support, so that, in order to obtain the proper amount of grass, they would be forced to stray over upon the adjoining section, the duty to make compensation would be as plain as though the cattle had been driven there in the first instance. The ordinary rule that a man is bound to contemplate the natural and probable consequences of his own act would apply in such a case. In Cattle Co. v. Vaught, 1 Tex. Civ. App. 388, 390, 20 S. W. 855, the court observed: 'This doctrine, however, does not authorize the owner of cattle by affirmative conduct on his part to appropriate the use of such lands to his own benefit. He will not be permitted thus to ignore the truth that every one is entitled to the exclusive enjoyment of his own property. In this case the appellant, by means of a fence constructed or maintained by it, inclosed the lands of the appellee in such manner as to reap from it those benefits which, as a rule, are incident exclusively to ownership. The use and enjoyment of the property under such circumstances import, necessarily, the idea of liability.' In this case it was held that, where the owner of several tracts of land, in inclosing them within a larger inclosure, necessarily inclosed a tract belonging to another, this was such an appropriation of the lands of such person as rendered the defendant liable for the reasonable value of the tract so inclosed. See, also, Kerwhaker v. Railroad Co., 3 Ohio St. 172; Railroad Co. v. Rollins, 5 Kan. 167, 177; Larkin v. Taylor, Id. 433; Delaney v. Errickson, 11 Neb. 533, 10 N. W. 451; Otis v. Morgan, 61 Iowa, 712, 17 N. W. 104; Willard v. Mathesus, 7 Colo. 76, 1 Pac. 690.

In the case under consideration, the testimony showed that, for five years before the plaintiff acquired title to the lands in question, they had been leased to Curtis & Atkinson, for pasturage purposes, at a rental of two cents per acre, with the stipulation that all permanent improvements erected by the lessees during the term should at the end of the term remain on the leased lands, and become the property of the lessor, and that they were about leasing the alternate sections of school lands when they failed; that in September, 1887, defendant, who in the June previous had bought out the stock of Curtis & Atkinson, together with all their interest in the fences, corrals, water tanks, (one of which was upon plaintiff's land,) and other property within the common inclosure of plaintiff and the public school lands, leased of the state the alternate sections of school lands within this inclosure, for four years, at four cents per acre. It seems, too, that negotiations were had, after defendant bought the cattle and horses from Curtis & Atkinson, between him and the plaintiff's agent, respecting the lease of plaintiff's lands; but no agreement was reached between the parties as to the price to be paid, and the same were not leased by the defendant, or held by him as tenant of the plaintiff. The testimony further showed that, from the time defendant obtained the lease of the state until the date of the trial, the stock owned or controlled by him was more than sufficient to consume the grass on the plaintiff's lands, and the sections alternating therewith leased by the defendant from the public school fund. Defendant not only pastured his own stock upon these lands, but 3,500 head of cattle owned by one Evans, for which he received $5,000 the first year, and for the remaining period, up to the year 1889, when he purchased them, $1.65 per head, as well as $2,500 for the pasturage of 3,000 calves belonging to another party.

These facts certainly showed an intent on the part of the defendant to avail himself of the pasturage of plaintiff's lands, and fully authorized the instruction of the court to the jury that, if the defendant overstocked the inclosure, he should be held liable to the plaintiff for the rental value of the lands. In such case the law raises an implied promise to pay a reasonable sum for the use and occupation of the lands, even though negotiations for a new lease had proven unsuccessful. Schuyler v. Smith, 51 N. Y. 309.

There was no error in the action of the court below, and its judgment is therefore affirmed. 

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