Comerford v. Dupuy
California Supreme Court
Appeal from the Twelfth District. The complaint verified, avers, in substance: 1st, that plaintiff was in peaceable and actual possession of a certain tract of land, “ which land, so far as was necessary, was inclosed by a good substantial fence, and part of it under cultivation; 2nd, that defendants were the owners of large numbers of cattle, which were permitted to run at large, not being confined by any fence or inclosure of said defendants, and being so at large and…
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Appeal from the Twelfth District. The complaint verified, avers, in substance: 1st, that plaintiff was in peaceable and actual possession of a certain tract of land, “ which land, so far as was necessary, was inclosed by a good substantial fence, and part of it under cultivation; 2nd, that defendants were the owners of large numbers of cattle, which were permitted to run at large, not being confined by any fence or inclosure of said defendants, and being so at large and ungovernable the said cattle of defendants on, etc., broke down the fence of plaintiff, so erected as aforesaid on said…
1Opinion of the CourtBaldwin, J.
Fields, C. J. concurring.
The judgment must be affirmed. The criticism of the answer in this case cannot be maintained ; at least, the defects suggested were not sufficient to sustain the motion to strike out. We cannot interfere with the discretion of the Court in refusing a new trial.
We think a party cannot recover for injuries done by cattle of / defendant breaking into plaintiff’s close, unless the land entered be inclosed by a fence of the character prescribed in the statute, or at least, by an inclosure equivalent to that described in the statute in /its capacity to exclude cattle. (See…
2Cited by6 opinions
- Blevins v. MullallyCalifornia Court of Appeal · 1913
- Logan v. GedneyCalifornia Supreme Court · 1869
- Hahn v. GarrattCalifornia Supreme Court · 1886
- Merritt v. HillCalifornia Supreme Court · 1894
- Albright v. BrunerAppellate Court of Illinois · 1884
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