Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-02-08

W iAA NfNNfI NttlfNNs Ut nus Nt'ft AN'@
this rule Of the common law D. so III
adapted TO our condition and is so m
conflict with the practice ot our PEG
pie INDUCED for time immcmurlal lhnJ
IL should not he considered as adopted 10y
US even in the absence Of statutory pro
visions abrngnting il, Buf0rd vs. Houtz
lS3 IT, =. 80. Davis vs. Davis, 40 lcAas
l23. The land Of appelees alleged t9
have been truspnesed upon by cattle OF
appellant does not seem TO have been
land in cultivation 80 as to bring u
within the meaning of Article 243l OF
our revised statutes which prescnDcs
the Kind of fence 90 be used Ia enclos-
ing such land ia counties whore no cleo
ton has been had under Article 45a2.
nor does IL appear from the record That
any election has been bad in Donley
county under this last numed article So
as TO authorize the kind of fence pre-
scribrd by Article 4Gl0a. and We must
therefore treat the case as one 10 which
the statute does not apply. II must bee
considered as SERTED IN this state that
the failure Of the owner Of llud o. con.
struct around 10 The exact kind uf fence
prescribed by the statute does not throw
DO open 10 whOmsoUvor sees proper tu
drive his cattle thereon. these statutes
being regarded as intended 10 prescribe
au easy limit for those who do not $40
enclose their land. leaving those who do
not TO settle their rights Independent Of
the statute. Davis VS.. Davis supra;
WurihugtOu vs.. Wade 81 Texas. ~.
What then Is the law applicable 10 such
cases iu this country n the absence Of %
statute. We having decided that common
law upuu this subject Is not applicable
boz this state believe it follows that the
owner of AN animal is not guilty OF neRli-
pnucp simply by permitting il 10 run ot
large uurpstrainpd unless he has notice
of lao IA nj al
animal struys upon the unencloscd land
Of another 10 is not tn he considered
trO pass II however. tue owner of the
animal has notice that his animal ~ liza
die To communicate dispaeo or iuilict I'M
jury upuI others 1t would be- rctiOuDblr
negligence for HIM 90 allow it upon the
commons See authorities above cited.
especially Walker vs.. Heron. % Texas
We also believe that If the owner of land
evidences desire To exclude others
thcrpirom by erecting u fence around It,
his enclosure should be- respected, but
unless his fence be- such az is reasonably
sufficient To- exclude ordinary animals of
the Kind complained OF, bis conirihutpry
negligence iu falling Co provide aud keep
iu rrplir "a proper fence win be- % bar
90 iis recovering for dgmulrs caused
Dy animals entering thereon through iu-
sufficient enclosure, Cooley ON forts and
Davis ys Davis. supra.
TIE court below made the liability Of
appellant dependent entirely upon the
finding OF the jury that It's cattle were
trr,pussurs upon the land of uprcllcos,
and while $50 trcspJssiug communicated
the Diseases complained of Go their yu;-
&c., and il win therefore not be- upCes-
sIry tor us tO consider the law applicu-
blr to a ease where the owner Of an
animal has notice of It's liability Go com
munlcatc diseases and docs not restrain
TO enable the jury TO decide rs 10
whether or not appellants cattle were
trespus-iug at the time they communi-
Gated The disease Go apppllCps' cattle
the court gave the following charge:
Every entry OF ones own cattle upon
the land or promises of another Is "a
UuSpds3, ANA the owner Of such cattle
win be- liable for Uuy damages sustained
10y the owner of such premises N ANY.
provided such lands or premises were nt
the time of such entry enclosed by
fence sufficient to exclude thcrcfrum
such cattle on animals as were uccustOui-
eel 10 boz used iu the country or RANGE
around aud about such enclosed premises,
and provided further than such trcsuass
is Effected by q forcibie entry through
such fence or enclosure
The evidence was uudisputed that eat
tie wer accustomed 10 raupc around
enclosure, and we think the jury must
rrnd In connection win pora,,ropb siy
which immrJlntnly r,lInu,.J IL thnt nn
nejjrns ronld maj rccoyc, ,,,,iosu " INK.
f,nrc was rnos,nnbl,, sT2irieu, ~, , I'M,
cattle fr,m thri,. ,nri"snr,, 'Tljs i,.,
mined pnrarrarb of mn. r,,,r,,, w. '" .,
fnllovs. "Rni II tI,, n,,-,,,, ., "I' "'
rlasrJ ur,,r,s,. o" ., i',.,,';, s"'n 'u.
or cnralessy mp 'nc'.,n, i,''',lyt .'',ye
,ntes to ha laft oman ~. Ky f,r,.,, ~ ,,,t
SUt nj rrnair ana s,,,h ~" ,r.. 80 70 I,!
fected tbrnncb sn,l, or., .,., p,s' ~
frrtivn frn,rs b, c,nn,, E r u' o,-
damage snstGinnJ I,v ,'P rcos s,n', og s "u
trr.r.,,. ~" ais, "'p,i,.i '7on vi Suyl
nf h. ,h,r,, ,, 49, ,, ,,'i,N V,l,vI p'llH
copied mntarialiy oiGcJ tb"' inv i w. o ~.
rerfIy Enthusiastically, ,,l,,, ,u'S III 'ur-
nuirsl "T onr,ii"o, ~ r'S,, ,ur ~" re-
i,nr.S gnd tGoi tLo ,,r.,', LIZ ,'t 'h'lr
sidrrrd N,,s s,'t'J.,,, 'i''' t ~ VIII no CON
cbor...s yyrra r."nost,i Pv n,','lH as no
Gis 6unrb of tbc rV casn bS ~ opPyi s upon
the issue of contributory nrrjigeurr Il,
general terms.
Of we 9fS 9lso OF opinion that the issue
was raised by de pleading onJ , r,iJ "S J.,
ff''' 'i'ANAlNA