(dissenting from division III and result).
How do §§ 188.2 and 188.3 of the Code affect the civil liability of the owner of an animal ?
Those sections in various forms were in our Codes down to §§ 2312 and 2313 of the Code of 1897. They were changed somewhat as §§ 2980 and 2981 of the Code of 1924, and thereafter they remained the same except for their numbers. Section 188.2 provides:
All animals shall be restrained by the owners thereof from running at large.
And § 188.3 provides:
Any animal trespassing upon land, fenced as provided by law, may be dis-trained 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.
(Section 188.8 supplements § 188.3 by granting the owner of the land the alternative of suing the owner of the trespassing animal for damages instead of distraining the animal.)
Section 188.2 creates a d%ity to restrain animals but does not expressly create civil liability for violating that duty. In contrast, § 188.3 (and § 188.8) creates civil liability for trespassing animals but does not in words spell out a duty — except for the inference arising from the word “trespassing.”
What effects do these sections have as to civil liability? The sections may be considered in reverse order.
When a statute expressly or by implication imposes liability for acts, the statute itself creates liability and a plaintiff need only show a violation of the statute and his damages as a result. As stated in Restatement, Torts 2d § 285, Comment 6:
In any or all of these respects the standard of conduct may be defined and established by a legislative enactment which lays down requirements of conduct, and provides expressly or by implication that a violation shall entail civil liability in tort. In such case the only questions that can arise as to the effect of the statute are as to its constitutionality and construction.
And in § 286, Comment c:
A legislative enactment or an administrative regulation may provide in specific terms or by necessary implication that a violation shall entail civil liability. In such case, if the legislation or regulation is valid and applicable to the facts of the case, the court must apply it.
*874On the other hand, if a statute itself does not expressly or impliedly impose liability, it may still establish a standard whose violation may be evidence of negligence or negligence per se. In such event, while liability is not created by the statute, it may arise at common law by virtue of the negligence doctrine. As stated in 65 C.J.S. Negligence § 19(1) at 615-618:
The legislature may, by statute, extend common-law duties . . . and violation of such a statutory duty may give rise to a cause of action on behalf of a person who is injured by reason thereof.
Such liability will necessarily exist where it is expressly imposed by statute for violation of its provisions. Liability may also exist, however, where the statute does not in terms impose any civil liability for violation of its provisions, or although the enactment is penal in its character; in such event, however, no statutory action will lie, but the remedy is found in a common-law action for negligence, consisting in a breach of a statutory duty. . . .
See also 57 Am.Jur.2d Negligence §§ 234— 236 at 615-620 (putting the matter in terms of liability per se as distinguished from negligence per se) ; Restatement, Torts 2d § 288B (when violation is evidence of negligence and when it is negligence per se).
Section 188.3 is a statute of the former type. The section expressly imposes liability for trespassing animals, enforceable by distraint under § 188.3 itself or by action under § 188.8. All that a plaintiff need show is that the defendant’s animal trespassed on land fenced as provided by law and the damages as a result. On the other hand, § 188.2 is clearly of the latter type. The section itself does not impose liability, but establishes a standard whose violation this court holds to be prima facie evidence of negligence in common-law actions for negligence. Leaders v. Dreher, 169 N.W.2d 570 (Iowa); Hansen v. Kemmish, 201 Iowa 1008, 208 N.W. 277.
In the present case, plaintiffs Wenndt pleaded both sections, but the trial court submitted to the jury only liability predicated on negligence — § 188.2. The Wenndts excepted to the trial court’s failure to submit the issue of liability predicated on trespass — § 188.3.
The question is whether the evidence is sufficient to bring the Wenndts under § 188.3, more specifically, whether the jury could reasonably find this land is “fenced as provided by law.” The fence involved is the partition fence between the parties’ pastures.
Our fencing statute is chapter 113 of the Code. Two kinds of fences are described: a “lawful” fence and a “tight” fence. §§ 113.18, 113.20. The principal difference is that a tight fence normally has woven wire at the bottom, so as to turn hogs and sheep. Nothing in § 188.3 indicates that a tight fence is required to make that section applicable, as distinguished from a lawful fence.
The evidence demonstrates, however, that the partition fence here was more than simply a lawful fence; it was a tight fence. The Wenndts had approximately 40 rods on the south and defendant Latare had approximately 40 rods on the north. The Wenndts’ end had woven wire at the bottom and three strands of barbed wire at the top. Latare’s end had woven wire at the bottom (a little lower than the Wenndts' woven wire) and four strands of barbed wire at the top. The posts were less than a rod apart and were well set and solid. The wire was tightly fastened to them. Exhibits A, B, C, D, and E are large photographs of the fence, and from the testimony and these exhibits the jury could reasonably find that this land was fenced as provided by law. Latare's bull went through Latare’s own end of the fence. That end is shown on the accompanying Exhibit B, extending to the right from the double posts.
*875
Latare contends that the land was not fenced as provided by law because the top wire of the fence did not come up to the full 48 inches § 113.18 requires. The fence was built several years ago, and at the time of the occurrence the top barbed wire at *876its lowest point was 40½ inches high and at the highest point was 47½ inches above ground. Assuming that § 113.18 requires a 48-inch fence, nevertheless Latare’s contention does not appear well founded. Land may be fenced as provided by law within the purview of § 188.3 although at times the fence may not be in perfect compliance with § 113.18 or in perfect repair. See Noble v. Chase, 60 Iowa 261, 14 N.W. 299. Indeed, in the ordinary case the animals escape because the fence is not properly kept up; if fences were always in perfect compliance and repair, § 188.3 would seldom be needed. Moreover, the exception clause in § 188.3 — that a landowner may not proceed under that section if the animal came onto his land in consequence of his own neglect to maintain his part of the fence — shows that § 188.3 contemplates land may be “fenced as provided by law” although the fence is not in complete compliance or repair at a given time or place. Otherwise that exception would not be needed.
Again, § 188.5, stating when animals may not be distrained, infers that land may be fenced as provided by law although the fence is not in perfect compliance or repair. Iowa was once open prairie and livestock roamed at large. The fencing statute was enacted, and any landowner could come under that law by requiring his adjoining owner to join in the erection of a partition fence, to be apportioned by agreement or by the township trustees. §§ 113.1, 113.3. Thus Iowa had unfenced land and land which was fenced under the fencing law. Today, of course, little land is unfenced.
Section 188.5 is the antipode of § 188.3 and deals with land which is unfenced. Section 188.5 is entitled, “Trespass on unfenced land.” (Italics added.) It provides :
If there be no lawful partition fence, and the line thereof has not been assigned either by the fence viewers or by agreement of the parties, any animal trespassing across such partition line shall not be distrained, nor shall there be any liability therefor.
As the fencing law permits, these neighbors by agreement apportioned the line between them and erected a partition fence several years ago. The jury could find the case falls within § 188.3 rather than § 188.5. A real question actually exists as to whether a jury could reasonably find that this land was not fenced as provided by law. The substantial partition fence which in fact existed no doubt accounts for the jury’s verdict for Latare on the negligence issue under § 188.2 — and for the Wenndts’ insistence that trespass should also have been submitted under § 188.3.
In connection with the matter of the height of the fence, had the bull gone over the Wenndts’ end of the fence because it was too low, we would have a different case. But he went through the fence, and at Latare’s end.
The Wenndts’ claim predicated on trespass under § 188.3 should have been submitted to the jury. The judgment should be reversed for trial on that claim.
REYNOLDSON, J., joins in this dissent.