
    The Miracle Pressed Stone Company, Appellant, v. Samuel Roth and Mrs. Samuel Roth.
    1 Animals: running at large. Stock restrained within an enclosure and thus under the control of the owner are not running at large within the contemplation of the law.
    
      2 Same: trespass: damages. One who has not required the erection of a partition fence, as provided by statute, can not recover for the trespass of animals crossing the line onto his land.
    
      Appeal from Polk County District Court. — Hon. Jesse A. Miller, Judge.
    Tuesday, November 23, 1909.
    Action to recover damages for trespass by defendants’ cattle upon plaintiff’s premises. At the conclusion of the evidence the court directed a verdict for the defendants, and from judgment thereon plaintiff appeals.
    
      Affirmed.
    
    
      Franklm & Miller and Mills & Perry, for appellant.
    
      J. D. Laws and P. T. Morris, for appellees.
   McClain, J.

The plaintiff and the defendants were tenants of separate parcels of a tract of unimproved land within the corporate limits of the city of Des Moines inclosed by a fence. There was no partition fence between these two parcels. Plaintiff used its portion of the field for the manufacture of cement blocks, while defendants pastured cattle on their portion. These cattle at various times went upon the portion of the field rented by plaintiff and caused damage to the cement blocks, which were in the process of manufacture, and for this damage plaintiff sought a recovery.

running at The court properly éxcluded from the consideration of the jury the ordinances of the city of Des Moines prohibiting stock from running at large, for the reason that the animals of defendants were not running at large within the contemplation of the law. They were restrained within an inclosure, and were therefore under the control of the owner. Hinman v. Chicago, R. I. & P. R. Co., 28 Iowa, 491; Valleau v. Chicago, M. & St. P. R. Co., 73 Iowa, 723.

It is conceded that in Polk County, within which the city of Des Moines is situated, cattle can not lawfully be allowed by the owner to run at large. See Code, sections 444-446. Therefore, if defendants’ animals running at large trespassed on land of which plaintiff was in rightful possession, they might have been distrained by plaintiff and held for damages. Code, section 2314. That section provides, however, as follows: “But where a partition fence is required, by law to be erected or maintained, stock escaping across such partition line shall be dealt with as provided in the preceding section.” And the preceding section includes the provision: “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 animals trespassing. across such partition line shall not be distrained, nor shall there be any liability therefor.”' > Under section 2355 plaintiff could have compelled defendants to contribute to the erection of a partition fence, which would have protected plaintiff’s land from the incursions of defendants’ cattle, and the respective duties of adjoining owners in the ease of partition fences are the same where stock are restrained from running at large as where they are not so restrained. Code, section 2368. Not having done so, plaintiff can not recover damages from defendants for the consequences of defendants’ animals crossing the partition line and coming upon the land of plaintiff. De Mers v. Rohan, 126 Iowa, 488; Duffees v. Judd, 48 Iowa, 256. The case of Foster v. Bussey, 132 Iowa, 640, is not in point, for the lands of the owners in that case were. separated by a river, and the court held that the statute as to partition fences had no application. It was held that the river bed constituted uninclosed land, and, therefore, as a natural consequence, tbe lands of tbe two owners were not in tbe same inclosure. We need not discuss tbe cases cited from other states, for it does not appear that tbe statutes of those states are similar to tbe statutes of this state with reference to animals running at large and tbe duty to maintain partition fences. Tbe judgment is affirmed.  