I dissent. The Boyd Bros, were clearly in possession and control of the land and the fences. If they opened the fence, they certainly could not have recovered if their sheep had gone through the opening and been killed. Plaintiff’s sheep were being pastured on the land subject to the general control of the land by the Boyds; and, if the sheep were injured by any misconduct of the Boyds, the latter were, perhaps, responsible to plaintiffs for such injury. But if the Boyds kept the fence open for their own convenience, neither they, nor anyone temporarily occupying part of the land for a special purpose under them, can complain of the defendant. This proposition is practically admitted in the prevailing opinion of the court, but it is said that this proposition was not presented in the instructions asked by appellant. I think it was clearly presented, particularly in the sixth instruction asked. I think that the phrase, “if the Boyd Bros, could not themselves have recovered damages to their stock under similar circumstances,” could not possibly have been understood by the jury in any other way than as meaning that if the sheep had belonged to the Boyd Bros., and had escaped onto the railroad under the circumstances under which plaintiff’s sheep so escaped, and the Boyd Bros, could not recover, then plaintiff could not recover. I do not see how any intelligent jury could understand it in any other way. I think that the judgment should be reversed.
I dissent: Beatty, G. J.