
    David S. Rice v. Sophia Nagle.
    Trespass; Injuries Committed by Cattle; Fence. Where roaming cattle belonging to one person break through a lawful fence, enter upon the land of another, and there commit injuries, the owner of the land may recover from the owner of the cattle for such injuries, notwithstanding such land may not have been entirely surrounded by a lawful fence.
    
      Error from Jackson District Court.
    
    Sophia Nagle sued Rice, to recover damages for injuries to plaintiff’s growing crops. On appeal to the district court, the case was there tried at the January Term 1872. The following instruction was given:
    “ If however, you find from the evidence that the cattle belonging to the defendant did break into and enter the inclosed land of the plaintiff, and injure her fence, or growing crops, you will decide from the evidence whether at the places where said cattle broke in, the plaintiff had a legal and sufficient fence. Then, if at those places she had a legal and sufficient fence, she is entitled to recover; and you will then ascertain from the evidence what injury was done by said cattle to the fence and crops, and return a verdict for the plaintiff for that amount.”
    
      The defendant asked the court to give the following instruction, which was refused:
    “Before the plaintiff can recover in this action the jury must find from the' evidence that cattle belonging to the defendant, or in his charge, did break into and enter the inclosed land of the plaintiff and injure her fence or her growing crops, and that at that time the plaintiff’s field or inclosure was surrounded by a legal and sufficient fence” .
    
    Verdict in favor of the plaintiff for $33 damages, and judgment on the verdict for such damages and for $220.85 costs. Rice brings the case here on error. ■
    
      Martin, Bums & Case, for plaintiff in error.
    
      Hophins & Hayden, for defendant in error.
   The opinion of the court was delivered by

Valentine, J.:

The only question presented by the record in this case is as follows: Where roaming cattle belonging to one person break through a lawful fence, enter upon the land of another, there commit injuries, can the owner of the land recover from the owner of the cattle for such injuries, notwithstanding such land may not have been entirely surrounded by a lawful fence? This question must be answered in the affirmative.

The judgment of the court below is affirmed.

All the Justices concurring.  