The common law on this subject is still in force in this Commonwealth; and the statutes of 1785, c. 52 and c. 53, have altered it only as between owners of adjoining closes, and occupants under them. . . . The statute of 1788, c. 65, Par. 3, which provides that every man, having his land legally fenced, may have trespass, or impound, &c., is merely affirmative, and affects the cases of lands legally fenced, and not the cases at common law where lands are not fenced. There is nothing in this act which shows an intent to repeal the common law in other particulars; and manifestly its provisions apply only as between adjoining owners, and not strangers.

For the plaintiff, it was contended that our statutes had virtually repealed the common law in this case; or rather that the English common law on this subject had never been adopted here. By our laws every man is bound to fence his close, not only against his neighbors, but against all the world. This law naturally arose out of the situation in which our ancestors found themselves in this country on their emigration, and for a long time afterwards. For want of proper pasture land, it was absolutely necessary that the cattle should be permitted to go at large into the forests for subsistence; and from the sparseness of the settlements, and the scarcity of inhabitants, it was impossible to watch them, so as to prevent their trespassing upon the unenclosed lands of others, the owners of which are therefore held to protect their enclosures by sufficient fences.

By the statute of the Commonwealth, 1788, c. 65, Par. 3, it is provided that any person injured in his mowing, tillage, or other lands under improvement, that are enclosed with a legal and sufficient fence, by swine, sheep, horses, or neat cattle, may have an action of trespass, &c., or he may impound the creatures, &c. The inference is irresistible, that if his lands are not so enclosed with a legal and sufficient fence, he must sustain the damage himself, and has no remedy against the owner of the cattle doing the damage. The plaintiff's cattle were, then, lawfully in Riggs's close; and Trask was bound to fence against any cattle, which were lawfully in the adjoining close. . . .

The cause standing continued nisi for advisement, the opinion of the Court was delivered in Suffolk, November term, 1809, by

PARSONS, C. J. (after reciting the pleadings). We are to decide whether the bar is, or is not, a sufficient answer to the conusance.

1. At common law, the tenant of a close was not obliged to fence against an adjoining close, unless by force of prescription; but he was, at his peril, to keep his cattle on his own close, and to prevent them from escaping. And if they escaped, they might be taken, on whatever land they were found damage feasant; or the owner was liable to an action of trespass by the party injured. . . . In the case

of a prescription to fence, he could be obliged to fence by the writ of curia claudenda. . . .

When our ancestors first settled in this country, they found it uncultivated; and when closes were made by the settlement and cultivation of the lands, there could be no prescription to fence; and therefore the common law authorizing the writ of curia claudenda, being inapplicable to the state of the colony, was never introduced. 2. Provision respecting fences was early made by the legislature of the colony of Massachusetts Bay. . . . The legal obligations of the tenants of adjoining lands to make and maintain partitionfences, where no written agreement has been made, rest on this statute. But in this position are not included adjoining lands, which are not both occupied by the respective owners, nor lands enclosed in a general field or common pasture, nor a close adjoining to a highway. These cases may be governed by different rules. . . . Every person, then, may distrain cattle doing damage on his close, or maintain trespass against the owner of the cattle, unless the owner can protect himself by the provisions of the statute, or by a written agreement, to which the parties to the suit are parties or privies, or by prescription. . .

3. We are perfectly satisfied, he is obliged to fence only as in the case of prescription at common law. The manifest object of the statute was, to establish the rights and obligations of tenants of adjoining occupied closes respecting the making and maintaining partition fences; and the rights of persons, not having any interest in either of the adjoining closes, remain unaffected by the statute, and are to be defined and protected by the common law. .

4. At common law, when a man was obliged by prescription to fence his close, he was not obliged to fence against any cattle, but those which were rightfully in the adjoining close.1

Against this position, the plaintiff has cited Fitzherbert, Abridgment, 298, note 6, where it is said, that if A be bound to fence against B, and B against C, and beasts escape out of the land of C into the land of B, and thence into the land of A, A shall not maintain trespass against C. But if A be bound to fence against B, and the beasts of B escape into the lands of A, and thence into the lands of D, a stranger, D may maintain trespass against B, who shall be left to his curia claudenda against A. By calling D a stranger, I suppose is meant, that neither A nor D is bound to fence against each other. For this distinction is cited 10 E. IV, 7, and 36 H. VI, Fitzherbert, Abridgment, Curia Claudenda, Bar, 168.

As this distinction is not supported, but we have looked into the authorities cited. proves that D may maintain his action.

opposed by other cases, The 10 E. IV, 7, clearly It is thus laid down by

1 10 E. 4, 7, 8; 22 E. 4; Fitzherbert, Abridgment, Curia Claudenda, 2; Jenkins, 4 Century Cases, 5.

Choke, Justice: "If I have a close between the close of A on one side, and the close of B on the other side, which I ought to fence, and through defect of fence A's cattle escape into my close, I can have no action, for it is through my own default. But if they pass through my close into the close of B, he may have an action against A, who shall be put to his writ de curia claudenda against me." The case of 36 H. VI is not reported in the year books, but there is a short statement of it in Fitzherbert, Abridgment, Bar, 168. And I believe the distinction arose from a mistake of the case. It is thus: "Note, that it was adjudged by the court, if my beasts go into the close of another (de autre), which is adjoining to my close, for the defect of the close of the other (de l'autre), and further go into another (autre) close of the other (de l'autre), that I shall not be punished because I do not retake them and put them again into my close until reparation be made of the other close, because they would go again," &c. Now, by mistaking the third close [i. e. the second close of the second person] for a close of a third person, who, because of the defect of his own fence, could maintain no action against the owner of the cattle, the distinction arose. But it was not well founded. That I have given the true translation appears from Jenkins, 4 Century Cases, 5. The rule, as there laid down, is, If A has green acre, adjoining to his own close white acre, which adjoins to B's close black acre, which A ought to fence against, if B's cattle go from his black acre to A's white acre, and thence to A's green acre, this is no trespass, because A did not fence his white acre against B's black acre. This seems to be the same case of 36 H. VI, stated in Fitzherbert, Bar, 168.

We therefore consider it settled at common law, that the tenant of any close is not obliged to fence, but against cattle which are rightfully on the adjoining land. . . . Let us now examine the bar in the case before us. . . .

We conceive it immaterial whether the cattle escaped into Low's close through his default or not. The cattle thence escaped into Riggs's close, through want of any fence. And it does not appear that Low and Riggs were obliged to make a partition fence. If the cattle were rightfully on Low's close, he was bound, at his peril, to prevent their escape into Riggs's close; and when they did escape, a trespass was committed. Trask has not fenced her close against Riggs, and the cattle were by wrong on Riggs's close; the owner of the cattle having no interest in that close, or any right to put his cattle there. And Trask was not obliged to fence against any cattle that had escaped from Low's close to Riggs's close. When the cattle escaped into her close from Riggs's, it was a trespass, and her bailiff might lawfully distrain them damage feasant.

The bar is, therefore, bad, and no sufficient answer to the conusance of the defendants.

If, in fact, the cattle had escaped from the plaintiff's 'close into Low's, through the defect of Low's fence, yet the plaintiff must fail in his replevin against the defendants, and may have his remedy against Low by an action of the case. Vide Cro. Jac. 665, Holbach v. Warner; 1 Salk. 335, Star v. Rookesby. By the Court. Plea in bar adjudged bad.

496. WOOD v. SNIDER

COURT OF APPEALS OF NEW YORK. 1907

187 N. Y. 28, 79 N. E. 859

APPEAL from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 24, 1905, affirming a judgment of the Monroe County Court, which affirmed a judgment of a Justice's Court dismissing the complaint.

The defendant and six other persons owned forty or fifty cattle in severalty, which were being driven along a public highway toward a slaughter house. The cattle were attended by their owners and others and without negligence on the part of the attendants they escaped from the highway and crossed the lands of one B., a distance of ten or twelve rods, to and upon the lands of the plaintiff, a nurseryman, and thereby did the plaintiff substantial damage. They were immediately pursued by the attendants and driven from the plaintiff's land. No fence was maintained by B. between said highway and his lands, and a division fence was maintained between the lands of B. and the plaintiff. The defendant owned ten of said cattle. The plaintiff brought this action in Justice's Court to recover his said damages, and he insists that he is entitled to a judgment for such part of his damages as the number of defendant's cattle bears to the whole number of cattle that trespassed upon his lands. The defendant obtained a judgment in Justice's Court dismissing the plaintiff's complaint, and such judgment was affirmed on appeal to the County Court of Monroe County, and on a further appeal to the Appellate Division. An appeal is taken to this court by leave of said Appellate Division.

Richard E. White, for appellant. It is the duty of the owner of animals to restrain them from entering upon the premises of others. If he fails to do so, he is liable to respond in damages for the injury done. . . . The only exception to the rule is that where cattle are being driven along the highway and are properly managed, and they escape into unfenced land immediately adjoining the highway, the owner of the said land cannot maintain an action for damages, provided the cattle are driven from his land within a reasonable time. The exception stated does not apply to the facts of this case, because the trespass was committed, not upon land which adjoined the high

way, but upon land which was back of or beyond the land adjoining the highway...

George E. Warner, for respondent. As a matter of law, the defendant cannot be held liable for any damage sustained by the plaintiff. . . . CHASE, J. In deciding whether the plaintiff is entitled to recover the damages done by the cattle as alleged, it is necessary to consider the rules or principles which have long been established relating to the possession of real property by its owner.

1. Every person whose rights are unaffected by some statute, contract, or prescription, is entitled to the possession of his real property undisturbed and unmolested by others. Every man's land is in the eye of the law inclosed and set apart from another's either by visible and material fences, or by an ideal invisible boundary, and in either case every entry or breach carries with it some damages for which compensation can be obtained by action (Waterman on Trespass, vol. 2, § 873). By the common law, it was as unlawful for the beasts of a neighbor to cross the invisible boundary line as it would be to overleap or throw down the most substantial wall (Cooley on Torts, 3d ed. 684). At common law every person was bound at his peril to keep his cattle within his own possessions, and if he failed to do so he was liable for their trespasses upon the lands of another, whether the lands trespassed upon were inclosed or not (Ingham on Animals, 258; Cooley on Torts, supra; 2 Am. & Eng. Encyc. of Law, 2d ed. 351; 2 Cyc. 392; Cowen's Treatise, 4th ed., § 536; Bush v. Brainard, 1 Cowen, 78 (note); Tonawanda R. R. Co. v. Munger, 5 Denio, 255). . .

2. There is an exception to the common law rule stated in favor of a person lawfully driving domestic animals along a highway. If such a person exercise due care in so doing, he is not liable for injuries which they do by escaping from his control upon the adjoining lands if they are pursued and promptly removed (Rightmire v. Shepard, 36 N. Y. S. R. 768).

3. Fence laws have been adopted in this and other States which materially affect the question of the rights of parties when cattle trespass upon lands from other lands in which they are rightfully allowed to roam. Where by statute or otherwise an obligation rests upon an owner of real property to fence the same, such obligation extends only in favor of persons owning domestic animals which are rightfully on adjoining lands. It is a principle of the common law, universally recognized where the common law prevails, that owners of real property are not obliged to fence but against cattle which are rightfully on the adjoining lands (see cases and authorities cited above). The statutes of this State are drawn in recognition of this rule. . . The fence law of this State provides:

"Each owner of two adjoining tracts of land, except when they otherwise agree, shall make and maintain a just and equitable portion of the division fence between such lands, unless one of such shall choose to let his lands lie open to