Caulkins v. Mathews

Citations

• 5 Kan. 191

Syllabus

<p>1. Real Estate : Fee. — Every person who owns real estate, in fee simple, is the exclusive owner, and entitled to the exclusive possession thereof.</p> <p>2. Trespass. — Any other person who disturbs that possession, by entering upon such real estate, or by allowing his cattle or horses to do so, without the consent of the owner, is a trespasser.</p> <p>3. Action: Diligence. — Every owner of property, before he can maintain an action to recover for injuries to it, must show that he used reasonable, and ordinary care and diligenco, to protect it from injury.</p> <p>4. Fencing, Evidence op Diligence: Vested Rights. — While the legislature of this state, by enacting certain fence laws, and laws regulating the running at large of stock, have impliedly declared that such reasonable care and diligence with regard to real estate shall be to fence it with a lawful fence, and that no action shall lie for injuries done by roaming cattle, unless such lawful fence is made; yet, they have nowhere attempted to enact any law giving to any person any rights upon another’s land, whether fenced or not; an act of that kind would tend to disturb vested rights, and be unconstitutiona and void. \ **\</p> <p>5. Negligence of Roth : Degrees. — It is not necessary in order to enable a party to, recover for injuries to his property, caused by the negligence of others, that he should bo entirely free from all negligence himself; but if his negligence is slight and that of tho other party is gross, or if his is remote, and that of the other is the proximate cause of tho injury, he may recover.</p> <p>6. Degrees: Questions of Law and Fact. — It is a question of fact for the jury to detormino, whether there has been negligenco, and its nature and degree, but it is a question of law for tho court to determine what degree of care and diligenco on tho one side and of negligence on the other, will entitle the plaintiff to recover.</p> <p>7. Recovery: Gross Negligence. — The plaintiff below allowe