Gillespie v. Wheatland Industrial Co.

Beard, Justice-.

In this action the plaintiff in error, who was plaintiff below, sought to recover damages for the loss of certain cattle which fell into a ditch and were killed. So far as necessary to understand the question presented here, the facts as stated in the petition are, that the defendant owned, operated and constructed a certain reservoir and irrigation works; that it constructed a spillway in the reservoir for the purpose of carrying off the surplus waters accumulating therein and that great quantities of water from said spillway flowed across a certain section of land, causing a deep ditch to be washed out across said land, which ditch was unsafe and dangerous to live stock crossing the range at or near said reservoir and spillway. That defendant knowingly, wilfully, carelessly and negligently maintained said ditch in a dangerous condition, and failed and refused to fence or guard it in any manner, although aware of its dangerous condition. That certain cattle of plaintiff were caused by a snow storm to travel toward said unguarded ditch, fell therein and-were killed by reason of defendant’s negligence in not properly fencing and guarding said ditch. *334 The defendant, among other defenses pleaded in its answer, admitted the ownership and control of the reservoir and that water flowed therefrom through said spillway, and that the water therefrom caused a ditch to be formed across the land described in the petition, alleged the necessity for the spillway and then alleged that at the time said ditch was created the land upon which it was situated was and still is the property of the Swan Land, and Cattle Company, Limited, a corporation, and at all times mentioned the defendant had been in lawful possession of the same as lessee. That said cattle of plaintiff were upon said premises without the consent of the owner thereof or of the defendant and were trespassing thereon at the time they were alleged to have fallen into said ditch. To that defense the plaintiff demurred, and the demurrer being overruled, he elected to stand thereon and judgment was entered dismissing the petition and against plaintiff for costs. He brings the case here on error.

The sole question presented is whether or not the owner or person in lawful possession of uninclosed lands is liable in damages to the owner of live stock killed or injured by straying thereon from the public range, if the owner or person lawfully in possession of such premises causes or permits them to be in an unsafe or dangerous condition for live stock so straying thereon.

The gist of the argument of counsel for plaintiff is, that the cattle were not unlawfully on the premises and hence were not trespassing thereon. This argument is based upon the holding that the owner of live stock running at large upon the range is not liable for damages done by such stock straying upon the uninclosed lands of another. But the reason for such non-liability is not because they are not trespassing, but.because no duty rests upon the owner to keep his stock off uninclosed land and he is not guilty of negligence in failing to do so or in permitting them to run at large; and being guilty of neither a wilful trespass, nor negligence in the care of his stock, he is not answerable in damages; and for the further reason that the land owner *335 has the right to exclude such stock from his premises by fencing against them or otherwise preventing them from coming or being thereon, and if he neglects to do so he takes the risk of trespass by animals lawfully running at large. Such stock were not rightfully upon such unin-closed land in the sense that the owner had the right to run and graze them there; for if they were, then the landowner would have no lawful right to exclude or remove them therefrom. On the other hand, as a general rule, the owner of uninclosed lands is under no duty to make or keep them in safe condition for stock straying thereon. In Wilt v. Coughlin (Mo. App.), 161 S. W. 888 , it was held, “The law is well settled in this and many other jurisdictions that the owner of uninclosed land is under no obligation to make it safe for pasturage, and, if stock stray upon it and sustain injuries by falling in a well or other excavation, there is no liability resting on the landowner for such loss.” Citing Hughes v. Railroad, 66 Mo. 325 ; Turner v. Thomas, 71 Mo. 596 ; Peek v. Western Union Tel. Co., 159 Mo. App. 148 , 140 S. W. 638 ; Overholt v. Vieths, 93 Mo. 422 , 6 S. W. 74 , 3 Am. St. Rep. 557 ; Witte v. Stifel, 126 Mo. 295 , 28 S. W. 891 , 47 Am. St. Rep. 668 ; Grindley v. McKechnie, 163 Mass. 494 , 40 N. E. 764 ; Knight v. Abert, 6 Pa. 472 , 47 Am. Dec. 478 . To which we add Ill. Cent. R. R. Co. v. Carraher, 47, Ill. 333; Beinhorn v. Griswold, 27 Mont. 79 , 69 Pac. 557 , 59 E. R. A. 771, 94 Am. St. Rep. 818 . The present case differs from Ditch Co, v. Morrow, 8 Wyo. 537 , 59 Pac. 59 ) 80 Am. St. Rep. 955 . In that case the stock belonged to the owner of the land through which the defendant’s ditch extended, and were rightfully on the premises. Counsel for plaintiff cites Haughey v. Hart, 62 Ia. 96 , 17 S. W. 189 , 49 Am. Rep. 138 ; Jones & Norris v. Nichols, 46 Ark. 207 , 55 Am. Rep. 575 ; Young v. Harvey, 16 Ind. 314 ; and Nobleville Gas & Imp. Co. v. Teter, 1 Ind. App. 322 , 27 N. E. 635 . In the Iowa case the excavation was alleged to have been made “immediately adjacent to the highway.” In the Arkansas case the pit was also *336 close to the highway, and cotton-seed and corn had been left by the appellants scattered in the neighborhood of it. In the case in 16 Indiana, the court said: “We think any reasonable man, of ordinary understanding and extent of observation of the ways of life, would say that the probability of injury to others, under the circumstances, from leaving the well in question in the condition it was, was not only strong, but that it amounted almost to a certainty — a probability as strong as would arise from air unguarded cellar on a street in the city.” And in the Nobleville case the excavation was in the street. Those cases point out the exceptions to the general rule and the particular circumstances and state of facts which will render the landowner liable. No such conditions are alleged in this case as would bring it within the rule as announced in either of those cases. The demurrer was properly overruled, and the judgment of the District Court is affirmed.

Affirmed.

Scott, C. J., and Potter, J., concur.