The Leon reporter. (Leon, Iowa) 1887-1930, 1907-08-22
CHICKENS ARE TREspASsERS.
The Iowa Supreme Court says you
Must Keep Your Chickens at
home.

nome.
The supreme court of the state of
Iowa has said some things about the
poultry business and the habit of the
famous Iowa hen. The hen must mind
her own business or she will be enioined
just the same as laboring men and
booze sellers. She must not flirt with
the neighbor rooster and the neighbor
rooster must keep his love affairs in the
barnyard he rules. They may yet try
to teach the old rooster monogamy.
The poultry men say that he may have
from nine to twenty-five wives depend
ing on his breed but the supreme court
may yet rule differently. They have
now gone SO far as to confine his atten-
lions to his own barnyard. This case
may be taken as precedent for a
farther step. We give herewith the
opinion of Judge Bishop in a recent
case entitled Keil vs. Wright ct al,
written July 8, 1907. 1t is significant.
Bishop, ]. The parties to this action
the defendants being husband and
wife-are farmers residing in Iowa
county, and their respective farms are
separated only by a public highway.
Plaintiff claims, as against defendants,
OF repeated, trespasses on his premises
by domestic fowls owned by them and
under their control, resulting in injury
and damage to his growing crops, and
he asserts that further and continued
like trespasses are threatened by de-
PENDANTS for the future. The defend
ants, in answer, deny generally and
specifically the acts Of trespass as
charged by plaintiff. They also chal-
lenge the right of plaintiff to sue in
equity for an Injunction, and this upon
the ground that as they, the defend
ants, are entirely solvent, plaintiff had
an adequate remedy at law by way Of an
action for damages.
On the fact issue of trespass it must
be said that the evidence preponder-
ates in favor of the conclusion that the
chickens did cross the road. So, too,
it appears that the crossing was oft re-
peated, and this in spite of the com
plants and protests of plaintiff. And
we 'hink, as did the court below, that
in view of the location of defendants
yards, and of their attitude towards
plaintiff, and considering also the
notion entertained by them of their
legal rights in the premises, to which
we shall make reference presently, con-
tinued trespasses are to be apprehend-
ed in the future unless means of
restraint is afforded by the strong arm
of the law. By it's ruling on a motion
of defendants to dismiss and it's con-
illusions expressed on which the decree
was predicated, the court below held
| that the facts made a case for an in
junction, notwithstanding there had
been no proof of defendants insolvency;
and i'll such conclusions we agree. 1t
is true, as general rule, that an
apprehended trespass on real estate
will not be restrained by injunction
unless it is made to appear that the
resulting injury would be irreparable
or that, by reason of insolvency
compensation could not he had in ar
action at law. But where, as in this
case, it is disclosed to the court that
repeated invasions have occurred in the
past, and are threatened for the future
on familiar doctrine equity will inter
fere by injunction, to the end that {
multiplicity of suits may be avoided
Without aiming to detract from the
dignity and Importance of the Iowa hen
it would be intolerable to require Of
the damage done by each cacklins
hen and stately rooster upon the oc.
casion OF each predatory excursion
across the fateful road. Accordingly
we are constrained to hold that the
action in its present form is maintain
able. Halpin v. McCune, 107 Iowa
494, IS N. W. PIG; High on Injunctions
page 702.
Council for appellants in argumen,
have gone beyond the matters of de
Tense suggested by them in pleading
and present the thought that plaintiff.
action will not lie for the reason thai
the English common law relative tt
domestic fowls has never been adopted
in this country, hence that such fowl!
are free commoners, and have the righ
to go whithersoever they will; and it il
facetiously said, "if this court SHOULD
hold the English common law in force
in this state, it would have far grea
er damaging result to the interests O
the state and the people generally, thai
all damage that all the chickens, geese
and turkeys might commit in the state
for the reason that it means putting
curb on the chicken industry" Howeve,
alluring the field of inquiry and discus
sion we are thus invited to enter, we
must decline in virtue of our repeated
holdings, to the effect that a question
not presented for the consideration O
the trial court cannot be made the sub
ject of argument in this court of appeal
1t is true, as shown by the record, tina
several days after the decree had beer
entered the defendants appeared ant
filed motion to set the same aside OF
the ground, among others, Athat undel
the Iowa law chickens, geese ant
turkeys cannot be restrained, as the
same are free commoners". This motion
was overruled, and properly SO, because
presenting matter of defense not plead
ed or suggested on the trial, and in 81
ruling it cannot be considered that the
court intended to make any pronounce
ment on the abstract subject OF lega
right thus brought to it's attention.
We conclude that there was no erro,
in the decree; and it is affirmed.
The INIT of ITO