# Bolton v. Barkhurst

> Ohio Court of Appeals · January 12, 1973 · 40 Ohio App. 2d 353

URL: https://www.frixlaw.com/law-library/cases/3764295

## Case

- **Full name:** Bolton Et Al., Appellants, v. Barkhurst Et Al., Appellees
- **Court:** Ohio Court of Appeals
- **Decided:** January 12, 1973
- **Citations:** 40 Ohio App. 2d 353; 69 Ohio Op. 2d 316; 319 N.E.2d 376; 1973 Ohio App. LEXIS 768
- **Precedential status:** Published
- **Opinion:** Concurrence by Wiley
- **Judges:** Brown, Wiley, Potter
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3764295

## Opinion text

Wiley, J.,
concurring. I concur in the judgment and also in the opinion of Judge Clifford P. Brown, with the exception of the statement made with reference to the contention of the plaintiff’s counsel, as follows:
“We recognize some plausibility in this contention * * The contention referred to was that of plaintiff’s counsel that the rationale and rule of strict liability of the law of trespass of the
Nixon
case,
supra,
in the interest of justice should apply to the present
Bolton
case, and that it is ludicrous to impose strict liability with regard to trespasses of animals in cornfields, but not with regard to trespasses of animals on highways.
I recognize no such plausibility. Upon a consideration of the established law of Ohio, the contention of plaintiff’s counsel is not even superficially fair or reasonable; on the contrary, it is totally without merit. Neither do I concur in the gratuitous statement of our colleague, beginning with the words, “to make it the law of Ohio” down to and in-
*360
eluding the words “the Ohio Supreme Court has such prerogative,” in that the statement suggests that the Ohio Supreme Court, as well as the appellate court, should give some favorable consideration to this contention.
The law of Ohio applicable to animals on highways is the law of negligence. The law of
trespass guare clausum fregit,
as originally developed in the common law, awarded damages on the basis of strict liability for (1) damages to the real estate only, and (2) as expanded by the case of
Morgan
v.
Hudnell
(1895), 52 Ohio St. 552 , included damages to personal property, and the case of
Nixon
v.
Harris,
15 Ohio St. 2d 105 , extended damages to personal injuries. It is to be noted in these cases just cited that the gravamen of the offense was the breaking into the close of another and is absolutely differentiated from the running at large of animals, prohibited by the statutes of the state of Ohio.
Potter, P. J., concurs in the foregoing concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3764295. Public record. Not legal advice.