Shepherd v. Hees

Per Curiam. The question here depends entirely upon the construction of this by-law. By the 12th section of the “ act relative to the duties and privileges of towns,” (vol. 2. 131.,) town meetings are authorized “ to make such prudential rules and regulations as they shall judge necessary and convenient, for directing the times, places, and manner, of permitting or preventing cattle, horses, sheep, and swine, or any of them, to go at large,” and “ for ascertaining the sufficiency of all partition and other fences.” By enacting that “ all hogs shall be kept up,” the town meeting must be supposed to intend that no hogs shall go at large ; which means, that they shall not be free commoners upon the highways.. It was not-intended by this by-law to interfere with the interior economy or management of every man’s farm; it could not reasonably have been intended to compel every farmer to keep his swine in a close pen. The power of the towns for such interior regulations may well be doubted. Upon this construction, therefore, it results, that the by-law in this case has no application ; because' the trespass complained of was not done through the outer fence, adjoining a highway or common ; but through an inner, or partition fence, between the two neighbours. [434] The case tests, then, upon Common-laW principles, indepenOf the by-law; and as it, appears that the swine entered the cornfield through that part of the interior fence which the plaintiff below was bound to keep1 in repair, but which he sufe. feréd to decay,, só as to be utterly insufficient; the /loss he. complained of was occasioned by his own negligence; and he has suffered damnum absque injkriit'. The judgment below-musí. Jfereyfersed.- ? . ; "• - judgment, reversed'?'