During receut years, many special statutes have been enacted, which prohibit the owner of animals to suffer them to go at large off his premises, within designated localities, and making him liable for all damages done thereby to the crops of another. The proprietor of the premises, on which the injury is done, may take possession of, and impound the trespassing animal, in the manner, and subject to the regulations, provided by the statutes. Otherwise than as thus enacted and regulated, the common-law doctrine, relating to trespasses by and upon animals, does not prevail in this State. The general statute in force, where not superseded by such special'and local laws, definitely defines the height, closeness and character of the inclosures and fences. — Code, § 1586; Acts 1878-9, 75. The succeeding section, 1587, exempts the owner of the animal from liability for any trespass by breaking into lands, not inclosed as required ; and further provides, that any person who injures, or destroys any such animal, shall be liable to the owner for five times the amount of the injury done. The statutes are founded on the docrine, that in this State uninclosed lands are regarded as common of pasture, and that owners of stock have a right to suffer them to run at large. If the proprietors of land would protect themselves from damage, they must inclose them as required by statute. Mo. & O. R. R. Co. v. Williams, 53 Ala. 595; M. & C. R. R. Co. v. Peacock, 25 Ala. 229.
The court, without respect to the character and condition of the fence inclosing the field, instructed the jury, that if the defendant found the horse in his field, he had the right to catch him and tie him up, if he did so in a careful and prudent manner; that it was a question of negligence, and if the jury believed, from all the evidence, that the defendant was not guilty of negligence in the manner in which he tied the horse, nor in leaving him tied, they must find a verdict for him. There is no conflict in the evidence, that the defendant caught the horse in the morning, and using first a bridle, and after-wards a rope, tied him to a tree in the field, where he was left until the next day, when he was found dead. The instruction of the court can not be maintained, except on a supposed right of the defendant to distrain under the circumstances of the case. The right to distrain does not exist, when there is no liability on the plaintiff to compensate for the damage done to the crops. The owner of lands may dispense with a statutory inclosure, if he chooses, and leave his premises open to animals running at large. If an animal should break into his lands, in such case, his rights are only defensive; the same as against any other trespass, where there is no right to distrain. In a proper case, he may regularly estray the auimal; and *403whether the owner be known or unknown, he •ma}' use such means as are requisite to turn or drive it outside the inclosure, taking due care to employ no unnecessary force. He may protect his premises against damage from the trespass, provided he does not in jure or destroy the animal.
To entitle the plaintiff: to recover, he need only show that the fence of the defendant was not constructed in substantial compliance with the statutory requirements, and that injury to the horse arose out of some act, done, commanded, or directed by the defendant.—Smith v. Causey, 22 Ala. 568. The declaration of the statute is, “if any person injures, or destroys any such animal, he is liable to the owner for five times the amount of the injury done.” Force and injury are the gist of the action under the statute — not negligence. When the fence is insufficient, the statute does not exempt from liability, by reason of the negligence. Seizing the horse, and confining him in the field, if the fence was not a lawful one, was wrongful ; and being the exercise of force, constituted a trespass, which fixed on the defendant a liability for the injury caused thereby. Dickson v. Parker, 34 Am. Dec. 78; Mooney v. Maynard, 18 Am. Dec. 699. Whenever there is an unjustifiable trespass, or the wrongful taking of the property of another, the law implies damage; and though no sensible injury be proved,the owner is entitled to recover some damages.—Parker v. Mise, 27 Ala. 480. If the fence of the defendant is found insufficient, under proper instructions from the court, on the other undisputed facts, he is liable for whatever injury was done, including the destruction of the horse, if its death was the natural and proximate consequence of the injurious acts of catching, tying and leaving the horse in the field. The manner of tying, and the time the horse was left tied in the field, were proper circumstances to be considered by the jury, noton the question of negligence, but in determining whether the death of the horse was the natural and proximate consequence of having thus been tied and left; and are material in ascertaining the amount of the injury done. If the horse died from other causes, the defendant would not be liable for its destruction, though he would be for any less injury. The failure of the plaintiff to go or send, on being informed, and untie the horse, does not operate to relieve the defendant from liability for his antecedent wrongful act.
An application of the foregoing rules to the several charges given and refused will sufficiently designate, for the purposes of another trial, which were improperly given, or improperly refused, without reviewing them seriatim.
Reversed and remanded.