
    No. 324.
    Stephenson v. Ferguson.
    
      Animals. — Running at Large. — Escaping from Enclosure. — Act of March 7th, 1887, Constnted. — Animals escaping from an enclosure in which they have been placed for the purpose of confining them, and which the owner, when he learns of their escape, endeavors to recover, can not be regarded as animals “ running at large,” within the meaning of the act of March 7th, 1887 (Acts of 1887, p. 38).
    From the Boone Circuit Court.
    
      G. S. 1Vesner and U. G. Wills, for appellant.
    
      G. M. Zion, for appellee.
   Black, J.

The appellant sued the-appellee for the recovery of the possession of four milch cows.

Issues formed were tried by the court, the finding and judgment being in favor of the appellee. The appellant’s motion for a new trial was overruled.

The appellant was the owner of the cattle. They were confined in a securely fenced pasture on his farm. Some unknown person or persons, without the knowledge or consent of the appellant, in the night of the 17th of August, 1889, threw down a portion of the fence by which the pasture was enclosed, and thereby released the cattle, which, the same night, wandered or were driven to a place in a public road near the dwelling house of the appellee, and about one mile from the place from which they were so released. About two o’clock in the morning of the 18th of August, the appellee, who was supervisor of the the road district in which he resided, was awakened and called out by some person on the highway, whom the appellee did not recognize. The appellee was told by this person that there were some cattle in the road, that he had run against them and had broken his buggy, and that he would prosecute the appellee if he did not put them up. Thereupon, the appellee confined the cattle upon his own farm. He did not know whose cattle they were; and in the morning of the 18th of August, he caused notices of the impounding to be posted in his district.

The same morning, at about sis o’clock, the appellant first learned of the escape of his cattle. He at once went in search of them, and he continued his search until he found them the same morning confined on the appellee’s farm. The appellant demanded of the appellee the possession of the cattle. The appellee refused to give them up, unless he should first be paid twelve dollars as his charges. Thereupon the appellant brought this action.

The-appellee contends that his refusal to surrender the animals was justified by the statute of March 7th, 1887, (Acts of 1887, p. 38), requiring road supervisors to cause animals running at large within their respective districts to be impounded, etc.

It has been settled that animals which escape from an inclosure in which they have been placed for the purpose of confining them, and which the owner, when he learns of their escape, endeavors to recover, can not be regarded as animals “ running at large,” within the meaning of this statute. McBride v. Hicklin, 124 Ind. 499; Wolf v. Nicholson, 1 Ind. App. 222.

Filed March 15, 1892.

Under these cases the appellee’s defence can not be sustained.

The judgment is reversed, and the cause is remanded for a new trial.  