Preston v. Keys

Crocker, J. delivered the opinion of the Court—Morton, J. concurring.

This is an action to recover damages caused by cattle driven into the plaintiff’s inclosed field by the defendants. It appears that the plaintiff had an outside fence which inclosed about six hundred and sixty-seven acres of land, with some smaller inclosures inside of it. While the outside fence was in process of construction, and before it was completed, the defendant Murphy and one Kehoe erected a [194]house upon a spot now within the large inclosure of the plaintiffs. Afterward ICehoe filed a claim in the County Recorder’s office, under the Possessory Act of this State, for a tract of one hundred and sixty acres of land, which was within this large inclosure, and included the house above spoken of. Afterward Kehoe sold his interest in the land to the defendant Murphy. The plaintiff has resided and pastured cattte within the large inclosure ever since the fence was built. The action was tried by a jury, who returned a verdict for the plaintiff, upon which a judgment was duly entered in his favor, from which the defendants appeal.

On the trial, the Court refused to give the following instruction, asked for by the defendants, to wit: “ If the jury believe that the land now inside of Preston’s fence was, previous to June 1st, 1857, when Kehoe built his house, used as a common for the pasture of all the cattle of the neighborhood, and that Kehoe took possession and built a house before Preston inclosed it, the fact that Preston afterward built a fence which took in Kehoe’s house will not operate to give Preston the exclusive possession and benefit of the inclosure; but the inclosure caused by the fence will continue as much for the benefit of Kehoe and his assigns as for Preston, because Preston’s fence does not divide the possession of the two.’’ The first part of this instruction is correct; but the last part, in italics, is incorrect, and therefore there was no error in refusing the instruction as asked for. Kehoe had no right, title, or interest in the fence built by Preston, nor was he entitled to use it, or claim any benefit from it. So, too, the conveyance of the tract of land by Kehoe to Murphy conveyed no right to, or interest in, this fence built by Preston.

The Court also refused to give the following instruction asked for by the defendants, to wit: “ If Kehoe was the first in possession of the land on which he built his house, the fact that Preston after-wards' built a fence which took in the land on which Kehoe’s house was built will not debar Kehoe and his assigns from the benefit of pasturage around his house, because the fence does not segregate Preston’s possessions from the possessions of Kehoe.” The record shows that one question raised by the plaintiff at the trial in the Court below, and respecting which he introduced evidence, was as to an alleged abandonment by Kehoe of his claim to the house and