
    J. D. OWEN v. TOWN OF WILLIAMSTON.
    (Filed 23 February, 1916.)
    1. Municipal Corporations — Cities and Towns — Animals at large — Ordinances — Nuisance.
    An ordinance oí a town in a county not having the fence law declared the running at large of hogs, etc., within the town limits a nuisance and provided for impounding them, and imposed a penalty upon the owner, together with a charge for the cost of keeping them. Held, the ordinance applied to owners who resided in the county as well as those residing in the town, and is a valid, one.
    2. Same — Charge for Impounding- — Statutes.
    A town ordinance in a county not having the fence law declared the running at large of hogs, etc., within the town limits a nuisance, and provided for impounding them and collection of the cost of keeping them, as well as a penalty on tlie owner. The plaintiff lived in the county, and his hogs were taken up in the corporate limits of the town, were impounded, and he was charged the cost for keeping them. Held, the law recognizes the difference between imposing a penalty for the violation of the ordinance and a charge for keeping up the hogs. Revisal, secs. 1679, 1682.
    3. Municipal Corporations — Cities and Towns — Animals at Large — Nuisance— Particular Instances.
    Permitting hogs to run at large within the corporate limits of a-town in violation of a town ordinance is a nuisance, and where the ordinance itself so declares, it is unnecessary, in order to convict for a violation thereof, to show that any particular instance amounted to a nuisance.
    Appeal by plaintiff from Rountree, J., at September Term, 1915, of Martin.
    This is claim and delivery for three hogs, begun before a justice of the peace and submitted upon ease agreed.
    
      B. A. Gritcher for plaintiff.
    
    
      No counsel for defendant.
    
   ClabK, C. J.

This is an appeal from a judgment upon a case agreed, in claim and delivery. It is agreed that the plaintiff lives 2 miles from Williamston, Martin County, on a farm; that his three hogs in controversy strayed into the corporate limits of Williamston, where they were taken up by the town officers and impounded. It was-the first time that his hogs had strayed into the town. The officers of the town did not exact any impounding fees, but required the plaintiff to pay 75 cents for feeding and caring for them until called for. He refused to pay the same, and brought this action for claim and delivery before a justice of the peace. Judgment against plaintiff for 75 cents cost of feeding the hogs.

The ordinance of the town under which the hogs were taken up provides :

“ORDINANCE 36. Whereas running at large of horses, mules, jennets, jacks, cows, hogs, goats, sheep, and geese in the town of Williamston is hereby declared a nuisance to the citizens of said town: It shall be the duty of the constable to take up such animals so running at large in said town, for which he shall receive from the owner of said animals a fee” (here followed the fee specified for each of the animals named) and “10 cents a day for feeding and keeping such animal.” With further provision for advertisement and sale and for payment into the treasury of the town. There is a further provision: “The fees from impounding country stock shall be one-half the above fee in each instance, and may not be charged against the owner until after the third impounding. Fees .for feeding shall be the same in both cases.”

. Tbe case agreed finds: “Tbe plaintiff bas not been charged any fee for impounding, but tbe 75 cents for feeding and caring for tbe said bogs for three days. In Martin County there is tbe fence law and stock is permitted to run at large in tbe country.”

Tbe exceptions are to tbe judgment against plaintiff for 75 cents for feeding tbe bogs:

1. That tbe plaintiff lives 2 miles from town, and that tbe stock ordinance is void as to tbe stock of a nonresident of tbe town.

2. That before tbe town can subject tbe stock of a nonresident to its regulations it has got to declare tbe animal itself a nuisance.

3. That under tbe general law of tbe State tbe citizens of Martin County have tbe right to let their stock run at large, and nonresidents are not subject to town regulations unless tbe particular stock is declared a nuisance.

Tbe court properly adjudged that tbe plaintiff should pay tbe 75 cents. It’is true that Martin County bas not, as a county, tbe no-fence or stock law. But tbe town of Williamston bas such provision, and doubtless there are other localities in tbe county which forbid tbe running of stock at large. It was within tbe authority of tbe town commissioners to pass such ordinance, as bas been repeatedly held by this Court. In S. v. Tweedy, 115 N. C., 705, it is said: “It was competent for tbe town to enact tbe ordinance that no bogs should run at large within tbe town limits, and to prescribe a penalty for violation of such ordinance, and it would make no difference if tbe owner of tbe bog should live outside of such limits,” citing Rose v. Hardie, 98 N. C., 44; Hellen v. Noc, 25 N. C., 493; Whitfield v. Longest, 28 N. C., 268.

When stock is found running at large in forbidden territory it is a violation of tbe law in that territory, and it makes no difference whether tbe owners live within tbe territory or without. Those living without tbe territory are not privileged to violate tbe law any more than those living within tbe territory. In S. v. Mathis, 149 N. C., 548, Connor, J., held that when tbe stock law is in force in a county and tbe owner of stock over tbe dividing line in another county willfully permits bis stock to run at large, it is not a valid defense that no fence bad been built on tbe line to prevent tbe stock from tbe adjoining county running at large in tbe county where tbe trespass was committed. It is true, tbe act bad declared the county line a lawful fence, but Connor, J., said: “While it is usual for tbe counties or townships which adopt a ‘stock law’ to build a common fence, it is not necessary that they do so.” In S. v. Garner, 158 N. C., 630, tbe Court held that tbe owner of cattle who permits them to inn at large in fence territory, but they stray across tbe line into a no-fence territory, is liable, though be does not turn them out for that purpose. He purposely turns them out and is responsible for tbe fact that they violate the law by straying into territory where stock are forbidden to run at large.

This is recognized to be the law by chapter 141, Laws 1895, which provides that where any city or town prohibits stock running at large it cannot collect fees for impounding the cattle of persons who live more than a mile from the corporate limits which have strayed into the town limits less than three times. This act was construed and held to be valid in Broadfoot v. Fayetteville, 121 N. C., 418. The plaintiff himself cites us to Revisal, 5453, to show that this act of 1895 has been repealed. If so, the effect would be simply to repeal the prohibition .against the town exacting fees for impounding where the stock have .strayed therein from outside territory not more than three times. But that question is not presented, because it is stated in the agreed facts that the town did not exact any fees for impounding, but merely compensation for the cost of feeding the stock, which is a different matter. Aydleit v. Elizabeth City, 121 N. C., 4.

The law recognizes the difference, for Revisal, 1679, prescribes the impounding fees for taking up stock running at large, and 1682 prescribes for payment for feeding such stock when taken up. The former fees go to the officer or the town or county, and the latter is a humane provision without which the stock might suffer for want of food and water.

The town ordinance makes it a nuisance for the animals named to run. .at large within town limits. It had authority to do this, and it was not necessary to go through the solemn form that the court should adjudge in •each instance that the act is a nuisance. The owner of the stock has ■violated a valid ordinance by allowing his stock to run at large. Besides, it is a self-evident fact, even if the ordinance had forbidden stock from running at large without specifically declaring that it was a nuisance. The owner of the hogs is not authorized to violate the town ordinance by permitting his hogs to run at large therein either by the fact that he lives outside of the town limits nor because his hogs do. S. v. Tweeay, 115 N. C., 705; Aydlett v. Elizabeth City, 121 N. C., 7; Jones v. Duncan, 127 N. C., 119.

Affirmed.  