example: The defendant, by raising the water of his dam, floods a highway and renders it impassable; this highway furnishing the only means of reaching part in use of the plaintiff's farm. The defendant is deemed

to be liable.1

1 Venard v. Cross, 8 Kans. 248.

CHAPTER XV.

DAMAGE BY ANIMALS.

§ 1. INTRODUCTORY.

Statement of the duty. A owes to B the duty to prevent his animals (1) from doing damage to B, if A has notice of their propensity to do damage, and (2) to prevent them from straying from his own upon B's premises

§ 2. OF NOTICE OF PROPENSITY TO DO DAMAGE.

1

Whoever keeps an animal with notice that it has a propensity to do damage is liable to any person who, without fault of his own legally contributing 1 to the injury, suffers an injury from such animal; and this, though the keeper be not guilty of negligence in regard to keeping it properly or securely. The gist of liability for the damage is the keeping of the animal after notice of the evil propensity. For example: The defendant has a monkey, which he knows has a propensity to bite people. The plaintiff, without fault of her own, is bitten by the animal. The defendant is liable, however careful he may have been in keeping the monkey.2

1 As to this term, see post, pp. 367 et seq.

2 May v. Burdett, 9 Q. B. 101; Cases, 396. See Jackson v. Smithson, 15 M. & W. 563; Card v. Case, 5 C. B. 622; Popplewell v. Pierce, 10 Cush. 509; Oakes v. Spaulding, 40 Vt. 347.

If the animal be feræ naturæ, it will (probably) be presumed that the defendant had notice of any vicious propensity whereby the plaintiff has suffered injury, since it is according to the nature of such an animal to do damage.1 And even if the animal be domestic, the owner will be presumed to have notice of any propensity which is according to the nature of the animal. For example: The defendant's cattle stray into the plaintiff's garden, and beat and tear down the growing vegetables. The defendant is liable, though not guilty of negligence; since it is of the nature of straying cattle to do such damage.2

8

In the case of injuries committed by domestic animals not according to the nature of such animals, it is clear that the owner is not liable if he had no notice that the particular animal had any evil propensity. For example : The defendant's horse kicks the plaintiff, neither the plaintiff nor the defendant being at fault, and the defendant having no notice of a propensity of the horse to kick. The defendant is not liable; since it is not of the nature of horses to kick people, when not provoked to the act.1

Statutes have been passed, declaring it unnecessary in an action against the owner of a dog to prove notice of a propensity of the animal to injure sheep or cattle. In the absence of statute, however, the rule requiring notice of the vicious propensity prevails in regard to dogs as well as with regard to other domestic animals.5

While, however, negligence in the owner of the animal

1 If a wild animal has been tamed and domesticated, the case may

be different. See arguments in May v. Burdett, supra.

2 See Cox v. Burbridge, 13 C. B. N. s. 430, 438, Williams, J. 8 L. C. Torts, 490.

* Cox . Burbridge, supra. The plaintiff was a boy playing in the highway at the time of the injury, but there was no evidence that he had done anything to irritate the horse.

See L. C. Torts, 490.

is not necessary to constitute a breach of duty when the 'scienter can be proved, negligence in the care of the animal will render the owner liable, though he did not know of the propensity.

When damage is done by animals upon the owner's premises, a different question, or set of questions, may arise. The case will ordinarily turn upon negligence, and negligence of a special kind, to wit, with reference to the occupancy of premises. The place where the damage was done may enter into the case; a bull may well be left at large in the owner's field, while a savage dog should not be.1 And then the character in which the person hurt entered the premises will have to be considered in determining the question of duty. Such person may have been 'invited' to enter; he may have been a trespasser; he may have been a bare licensee. The owner of premises obviously owes a duty to persons whom he induces to come there, to wit, that they may do so safely so far as his own conduct is concerned; while towards others his duty may be very different. And in all these cases there may be a question of the effect of notice by the occupant, or knowledge by the person injured, of the state of things. For the principles touching such cases the student must look to that part of the chapter on Negligence, relating to the Use of Premises.

§ 3. OF ESCAPE OF ANIMALS.

By the common law of England and of most of our States the owner of land is bound to keep it fenced; and

1 Loomis v. Terry, 17 Wend. 496.

2 Chapter xvii., § 9. Section 10, on assuming the risk, should also be noticed.

if his animals escape and get into his neighbor's premises, he is liable for the very act as for trespass,1 whether the escape was owing to his negligence or not.2 The same is true indeed though the defendant's animals may not have escaped from his enclosure; if still an animal commit damage, by putting part of its body over, through, or beyond the boundary line, the defendant will be liable regardless of negligence. For example: The defendant's horse bites and kicks the plaintiff's horse through the partition fence between the plaintiff's and defendant's premises. The defendant is liable, though not guilty of negligence.3

The common-law rule, however, has been variously modified by statute in this country; and in some of the Western States it is held inapplicable to the condition of things.*

The escape of animals from the highway along which they are being driven or led is a different thing. This latter is not a trespass, that is, a breach of absolute duty; liability on the contrary turns upon negligence on the part

1 Ellis v. Loftus Iron Co. L. R. 10 C. P. 10, 13; Lee v. Riley, 18 C. B. N. s. 722. As to dogs see Read v. Edwards, 17 C. B. N. s. 245. Further, see Pollock, Torts, 432, 433, 2d ed.

2 Myers v. Dodd, 9 Ind. 290; Webber v. Closson, 35 Maine, 26. How strong the common law upon this subject is, is shown by cases applying the rule unhesitatingly to strays from open commons. See Year Book, 20 Edw. IV. 11, pl. 10, where to an action of trespass with cattle the defendant pleaded that his land adjoined a place where he had common, and that his cattle strayed from the common, and that he drove them back as soon as he could. The plea was held bad, the court saying that if the land in which the defendant had common was not inclosed, he must still keep his beasts there and out of the land of others.

8 Ellis v. Loftus Iron Co. supra.

4 3 Kent, 438, note 1, 13th ed.; Kerwhacker v. Cleveland R. Co., 3 Ohio St. 172.