(specially concurring.) I disagree with the discussion in the opinion, but concur in the reversal. The rights and obligations of the parties are statutory, and are fixed by Chapters 3 and 4 of Title XII of the Code. Section 2313 provides:
“Any animal trespassing upon land fenced as provided by law may be distrained by the owner of such land, and held for all damages done thereon by it, unless it escaped from adjoining land in consequence of the neglect of such landowner to maintain his part of a lawful partition fence. The owner of the land from which such animal escaped shall also be liable for such damages if it escaped therefrom in consequence of his neglect to maintain his part of a lawful partition fence,” etc.
Section 2315 gives an action for damages without distraint, upon the same condition. Section 2367, Code Supplement, 1913, provides:
“In case adjoining owners or occupants of land shall use the same for pasturing sheep or swine, each shall keep his share of the partition fence in such condition as shall restrain such sheep or swine.”
Code Section 2368 provides that the chapter is alike applicable “where stock is restrained from running at large as where not so restrained.”
In the light of the foregoing statutes, I do not agree that plaintiff’s neglect, if any,, was, as a matter of law, not the proximate cause of the damage, as held in the opinion. Nor do I agree that the fact that Section 2314 prohibits swine from running at large is a controlling consideration; nor does such fact make the liability of the owner of the hogs either greater or less than it Avould be in the case of escape of cattle or other stock upon plaintiff’s land. On the first point, if these hogs Avere lawfully upon defendant’s *1204land, and escaped through the partition fence, the question presented is: Through whose neglect of maintenance of the fence did they escape? Tf it was plaintiff’s neglect, he cannot recover. If it was the neglect of defendant, he is liable. If the escape resulted proximately from the negligence of both, manifestly plaintiff could not recover. This question of neglect was a jury question, under the'evidence, and was quite decisive. On the second point, Section 2314 is obsolete, so far as its differentiation is concerned between stock prohibited from running at large and that permitted to do so. All stock is now prohibited. Furthermore, Section 2308 expressly makes the partition-fence statute alike applicable, as above quoted. The liability of the defendant for the escape of his hogs was precisely what it would have been if his cattle had thus escaped.
I specially disagree, therefore,, with that part of the opinion which holds that the effect of Section 2314 was to “make it the duty of this defendant to prevent the escape of his hogs upon the land of his neighbor.”