Scott v. Wirshing

Citations

• 64 Ill. 102

Syllabus

<p>1. Fences—sufficiency to maintain trespass for animals breaking into inclosure. In a suit hy the occupant of an inclosed, field to recover damages of the defendant for injuries to crops, etc., hy defendant’s cows in breaking through the fence inclosing the field, the court instructed the jury that before any recovery could be had for damages for the trespass of stock in breaking into an inclosure and destroying- com therein, it must be proved that the fence was at least five feet in height from the ground: Held, that the court erred in so instructing the jury.</p> <p>2. The law is that an action may be maintained for the trespass of cattle, if the plaintiff’s fence is good and sufficient; and its sufficiency must be determined by the jury from the evidence.</p> <p>3. When the court, in such an action, had, at the instance of the plaintiff, instructed the jury that the fence was good and sufficient if it would prevent the breaking in of stock not breachy, it was not error to refuse another instruction that the fence was sufficient if it would turn ordinary stock. The first stated the law sufficiently.</p> <p>4. Same—statute relating to partition fences. Section 14 of the chapter entitled “Inclosures and Fences,” R. Stats. 1845, requiring fences to be at least five feet high, has reference solely to partition fences between adjoining owners, and has no application to an outside fence.</p>