An owner of grazing land in Texas, who stocks his land with
cattle greatly in excess of the number which can be fed upon it and
permits them to go on and occupy and feed from the grass growing
upon unoccupied land of a neighboring proprietor, with no
separating fence, becomes liable to the latter for the rental value
of his land so occupied.
Page 152 U. S. 82
This was an action brought in the Circuit Court of the United
States for the Northern District of Texas, September 17, 1888, by
William Walter Phelps to recover of the plaintiff in error, Sam
Lazarus, the rental value of 176,000 acres of land in Texas from
April 15, 1887 at eight cents per acre per annum. The facts of the
case, as shown by the pleadings and proofs, were substantially as
follows:
In 1882, Phelps' vendor leased these lands, the sections of
which alternated with sections owned by the Texas Public School
Fund, to the firm of Curtis and Atkinson, for five years at two
cents per acre for Grazing purposes. It was agreed in the contract
of lease that all improvements made by the lessees should become
the property of the lessor at the expiration of the lease. Curtis
and Atkinson, in conjunction with adjoining owners, built a fence
around the north, east, and west sides of their land. These fences
included the school sections, as well as those of Phelps. They did
not separate the sections leased by them from the alternate school
sections by fence, nor did they apply for a lease of these
alternate sections from the state until June 12, 1887. Before the
lease was granted, however, Curtis and Atkinson sold nearly all the
cattle and horses owned by them on the enclosure to Sam Lazarus,
plaintiff in error and defendant below. Lazarus applied to the
state for a lease of these alternate school lands, and in
September, 1887, a lease was delivered to him, to take effect from
the date of the application of Curtis and Atkinson, June 12, 1887.
There was a penalty under the law of Texas for using the public
lands without a lease.
Phelps became the owner of 168,300 acres April 15, 1887, and
Curtis and Atkinson held under him, as tenants at will, up to the
date of the sale of their stock. After the purchase of this stock
by Lazarus, some negotiations were entered into with Phelps for a
lease of the lands, but nothing came of them. Subsequently he
secured the lease of the alternate school sections to the amount of
162,270 acres.
In the fall of 1887, the owners of the land on the south of
these sections in dispute erected a fence dividing their lands from
those of Phelps, thus entirely enclosing the 168,300 acres
Page 152 U. S. 83
belonging to Phelps and the alternating school sections in one
continuous tract of land.
During the tenancy of Curtis and Atkinson, they had erected two
tanks, one upon the land of Phelps. The location of the other was
not proven. These tanks were subsequently used by Lazarus. After
the purchase by defendant of the stock of Curtis and Atkinson, he
contracted to pasture upon this land, besides his own stock, one
herd of 3,500 head, for which he received $5,000 for the first
year, and $1.65 per head until purchased by him in 1889, and 3,000
calves, for which he received $2,500. The cattle owned and
controlled by Lazarus were not confined to the school sections
leased by him, but grazed upon the lands of Phelps, and the
undisputed proof was that the entire tract was overstocked, but in
no other way than by having his cattle in this enclosure did
Lazarus prevent the owner of the 168,300 acres from taking
possession or from grazing other stock thereon.
Upon this state of facts, and proof as to the rental value of
the land, Phelps secured a verdict and judgment for $8,417. The
defendant thereupon sued out this writ of error.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the 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 enclosure 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 enclosure or to prevent them
Page 152 U. S. 84
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
enclosure 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 enclosure 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 unenclosed lands
of others. This rule, however, has been modified in Texas by
Revised Statutes of Texas, article 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
Sabine & East Texas Railway v. Johnson, 65 Tex. 389,
393, that:
"Since the fence law of 1840, the owner of unenclosed 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. This custom of
permitting
Page 152 U. S. 85
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.
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's 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 unenclosed 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
St. Louis Cattle Co. v. Vaught, 1
Tex.Civ.App. 388, 390, the court observed:
"This doctrine, however, does not authorize the owner of cattle
by affirmative conduct on his part to appropriate the
Page 152 U. S. 86
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,
enclosed 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 enclosing them within a larger enclosure, necessarily
enclosed 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 enclosed.
See
also Kerwhacker v. Cleveland &c. Railroad, 3 Ohio St. 172;
Union Pacific Railway v. Rollins, 5 Kan. 167, 177;
Larkin v. Taylor, 5 Kan. 433;
Delaney v.
Errickson, 11 Neb. 533;
Otis v. Morgan, 61 Ia. 712;
Willard v. Mathesus, 7 Colo. 76.
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 and 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 and 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 enclosure of
plaintiff and the public school lands, leased of the state the
alternate sections of school lands within this enclosure for four
years at four cents per acre. It seems, too, that negotiations were
had, after defendant bought the cattle and horses from Curtis and
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
Page 152 U. S. 87
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 enclosure, 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.
