This suit was brought in the District Court of Donley County, by the defendants in error, to recover of plaintiff in error damages for an alleged trespass of the latter's cattle upon the pasture of the former. It was claimed in the petition that the plaintiffs' cattle had died by reason of a disease communicated to them by those of the defendant. There was a judgment for the plaintiffs, which, upon appeal by the defendant, was affirmed in the Court of Civil Appeals.
It was shown upon the trial, that the plaintiffs were the owners of a pasture embracing 2000 acres, which was enclosed by a wire fence, and upon which they held about 100 head of cattle. This pasture was entirely surrounded by a much larger one, which was owned by the defendant corporation, and which was also enclosed by a fence of the same general character. The fence of plaintiffs, as they testified, was constructed of "posts about 30 feet apart, with four barbed wires, and three or four stays between each post." In 1889 the defendant company placed in its pasture a large number of East Texas cattle, which were less in size than the cattle of the Panhandle section. Some of these cattle passed through the plaintiffs' fence and into their pasture, and there was evidence sufficient to justify a finding that they communicated a disease to some of plaintiffs' cattle, from which they died. The fence appears to have been passed through by the young cattle, presumably the calves and yearlings.
One of the plaintiffs testified that "they (meaning the cattle) would crawl through the fence." The other also testified as follows: "They were small, and just walked through our fence."
The court charged the jury as follows: "Every entry of one's own cattle upon the lands or premises of another is a trespass, and the owner of such cattle will be liable for any damages sustained by the owner of such premises, if any, provided such lands or premises were at the time of such entry enclosed by a fence sufficient to exclude therefrom such cattle or animals as were accustomed to be used in the country or the range around and about such enclosed premises, and provided further *Page 185 that such trespass is effected by a forcible entry through such fence or enclosure."
This charge was assigned as error upon the appeal to the Court of Civil Appeals, and the assignment is insisted upon in this court.
Neither the courts nor the Legislature of this State have ever recognized the rule of the common law of England which requires every man to restrain his cattle either by tethering or by enclosure. Davis v. Davis, 70 Tex. 123. Hence if the cattle of one person wander upon the unenclosed lands of another, or upon his lands imperfectly enclosed, they are not trespassers, and the owner is not liable for any damage that they may inflict. It follows that one who desires to secure his lands against the encroachments of livestock running at large, either upon the open range or in an adjoining field or pasture, must throw around it an enclosure sufficient to prevent the entry of all ordinary animals of the class intended to be excluded. If he does not, the owner of animals that may encroach upon it will not be held liable for any damage that may result from such encroachment. This is the necessary result of the right of the owner of domestic animals to permit them to run at large, as recognized by the laws of this State. Since he does not owe the duty of confining his cattle, he is guilty of no negligence, and he does no wrong by allowing them to go unconfined, and is not responsible for their acts if, by reason of an insecure fence, they inflict damages upon the lands of a neighbor. In other words, their encroachment upon another's lands is not a trespass. If, however, he drives his cattle upon the enclosed land of another, however imperfectly enclosed, he is guilty of a trespass, for which he is liable to answer in damages. Davis v. Davis, supra.
Tested by the rule we have announced, the charge under consideration can not be sustained. Abstractly considered, it admits of a holding, that if only sheep "were accustomed to be used in the country or in the range around and about the enclosed premises," and the owner of the land had a fence sufficient to exclude such animals, one who should bring in neat cattle, and leave them unconfined upon adjacent lands, would be held to respond in damages for any loss that might ensue by reason of their encroaching upon the enclosed premises. It is clear that such is not the law. It is but just, however, to the learned judge who tried the case to say, that it is apparent from the entire charge, in the light of the testimony, that he did not intend to lay down so broad a doctrine. He referred solely to neat cattle. But the possible construction we have suggested serves to illustrate what we conceive to be an error in the instruction, when applied, as doubtless intended, to the latter class of animals only.
We do not hold that for no breach of his fence and invasion of his pasture by domestic animals could a land owner recover under our laws. It may be admitted, that if his enclosure be sufficient to exclude all cattle *Page 186 of an ordinary disposition, he would have the right to recover for the trespass of such as were peculiarly vicious and prone to break fences. The owner of a dog may, as a general rule, permit him with impunity to run at large, but if he knows him to be vicious and does not restrain him, he is liable for any injury he may inflict upon person or property; and it would seem that the same principle should apply to the owner of any domestic animal known to him as being accustomed to break through an ordinarily good and sufficient fence.
But upon what principle are we to draw a distinction between small cattle and large? If the fact that all the cattle in the neighborhood of his pasture were of large breeds when his fence was constructed would relieve the owner of the necessity of making his fence sufficiently close to keep out small cattle that might be brought into the country, why should he be not relieved against the necessity of fencing against hogs, provided there were no hogs within reach when he made his enclosure? The owner of the little "dogies" (as the witnesses call them), such as crawled or walked so freely under the wires of plaintiffs' fence, had precisely the same right to permit them to go at large as his neighbors had who owned Herefords or shorthorns; and it could make no difference who came first with his cattle to the neighborhood. It is equally unimportant whether others in the same section or neighborhood kept the same kind of cattle or not.
It is the right of every owner of domestic animals in this State, not known to be diseased, vicious, or "breachy," to allow them to run at large, and this without reference to the size or class of such animals kept by others in the same neighborhood. For these reasons we think there was error in the charge complained of, for which the judgment must be reversed.
We are of the opinion that the Act of March 26, 1879 (2 Sayles' Civil Statutes, article 4609a), applies only to counties and subdivisions of counties in which the provisions of chapter 4 of title 93 of the Revised Statutes have been put in force by an election. So also title 43, in relation to fences, applies only to lands in cultivation, and not to pasture lands. They have no bearing upon the case, except in so far as they evince a recognition by the Legislature of the general rule, that owners of domestic animals have the right in this State to permit them to run at large.
In order to obviate any misconception in the scope of this opinion, we call attention to the radical distinction between this case and that of Davis v. Davis, supra. In that case the defendant drove his cattle upon the plaintiff's enclosed land. That made him a willful trespasser. In this the defendant corporation merely put its cattle upon its own pasture, and they passed the plaintiffs' fence of their own volition.
If the agents of the defendant corporation knew that their calves could pass through the plaintiffs' enclosure, and that they were likely to communicate *Page 187 disease to the latter's cattle, it was negligence on its part not to confine them, and for the consequences of that negligence it would be liable.
The judgments of the District Court and of the Court of Civil Appeals are reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOR REHEARING.