Holladay v. Marsh

By the Court, Savage, Ch. J. In order to have a clear understanding of the existing rights of the parties, it will be useful to enquire what were their relative rights and duties at common law, and what alterations are made by the statute. “At common law,” says Ch. Justice Parsons, in Rust v. Low, (6 Mass. R. 94,) “ 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 might be found damage feasant, or the owner was liable to an action of trespass by the party injured.” “ Every unwarrantable entry on another’s land is a trespass, whether the land be enclosed or not. A person is equally answerable for the trespass of his cattle as of himself.” (Wells v. Howell, 19 Johns. R. 385. 3 Black. Comm. 209, 211.) “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.” (6 Mass. R. 97.) Where there was no agreement or prescription, there was no mode by which one tenant could compel the tenant of an adjoinining close to make division fences; and even where there was such agreement or prescription, the remedy was by action upon such agreement or prescription. Our statute {relative to the duties and privileges of towns, 2 R. L. 133, § 17,) however, has altered the rights of the parties. Where the lands of two persons join, each shall make a just proportion of the division fence, unless they agree to let their lands lie open. If any person shall neglect to make or keep in repair his proportion of such fence, he shall be liable to such damages as shall accrue by reason of his negligence ; and if he omit to make or repair his proportion of the fence for one month after notice and request, then the party injured may make or repair the fence at the expense of the party so neg [146] lecting to do it. And in ease any person who shall have ma(je his proportion of the fence, shall be disposed to throw up his lands for common feeding, or to let the same lay open, he shall give three months notice to the person or persons in possession of the lands adjoining ; and if the fence shall be removed before the expiration of three months, the person removing it shall pay all damages sustained by such removal. Under this statute, it has been decided that where hogs entered a corn field through the plaintiff’s own fence, the same being insufficient, the plaintiff could not recover; but had they entered through the defendant’s fence, the plaintiff would have recovered. (12 Johns. R. 433.) And the case of Wells v. Howell, (19 Johns. R. 385,) decides that as against a highway, where cattle have no right to run, no fence at all is necessary, to enable the plaintiff to maintain trespass. In the application of these principles to this case, how are the parties affected l Had the statute never been passed,- the defendant must have kept his cattle in his own premises in the absence of all agreement or prescription about fences. The plaintiff, without any fence, could bring trespass for the injury he has sustained. Had the fence remained under the statute regulation, it being the fence of the defendant, and had the same injury been inflicted, the plaintiff would have sustained trespass. Is the defendant, by throwing up his land to common feeding, or to lay open, in a better, or the plaintiff in a worse situation, than at common law ? Into what is the defendant’s field converted by removing the partition fence ? Is it a common highway ? or does it become the common lands of the town ? or does it remain the property of the defendant, for any trespass upon which he may maintain an action ? If it became common lands, the defendant’s cattle were wrongfully there without a bye-law of the town permitting cattle to run at large. So, too, if it became a highway: and if the character of the field was not altered, the utmost effect oft he defendant’s withdrawing his fence under the statute would be to remit the parties to their common law rights and duties. The statute was intended for the convenience andx accomodation of all concerned; not to enable one man to destroy his neighbor’s crops under cover of the law. [147] By the twelfth section of the act, towns have a right to make such prudential rules as they think proper for improving their common lands in tillage and pasturage, or any other way, and for permitting or preventing cattle, &c. to go at large, and for directing the time and manner of using their common lands. This section undoubtedly has reference to sUch towns only as have common lands, the property of the town in its corporate capacity ; and it may well be doubted whether the seventeenth section does not also relate to such towns only as have commons, when it speaks of throwing up land to common feeding, or to let the same lay open. Suppose a case where the town has no common land, and they pass a bye-law permitting cattle to run at large, where are they to run? Surely not on individual property. Where then ? in the highway ? The public have simply a right of passage over the highway; they have no right to depasture the highway. The owner of the lands through which the highway runs is the owner of the soil, and of the timber, except what is necessary to make bridges, or otherwise and in making the highway passable. (15 Johns. R. 453;) and if the owner of the soil owns the timber, why not the grass ? This question has never been distinctly raised in this court, and some intimations have been given, from which it might be inferred that towns have a right to permit cattle to run at large in the highways ; but in Stackpoole v. Healy, (16 Mass. R. 33,) the question has undergone a very full consideration and discussion, and the supreme court of Massachusetts have decided that the public have no such right in highways. The statute in that state is in stronger terms than ours; but it was holden to relate to common lands only, and not to highways. It is not necessary now to decide that point, because no regulation of the town is shewn permitting cattle to go at large. If the defendant’s cattle were in the highway or a common, they were there unlawfully, without authority from the town; and it is certainly well settled, that a man is not obliged to fence against any cattle but such as may be rightfully on the adjoining close. (6 Mass. R. 99. 16 id. 38. 2 H. Black. 527. 19 Johns. R. 385.) In towns where there are common lands, or where the town has authority to direct [148] the times and manner of using such lands, if a party chooses t0 fi3row Up ]3¡s fields to common feeding, and cattle are rightfully feeding upon commons, either such as belong to the town, or such as are thrown up to common feeding under this section, the owner of crops must undoubtedly make fences against such cattle so lawfully grazing ; and to such cases only, I apprehend, is this provision of the statute applicable. Some minor questions were raised which require a decision. On the part of the defendant it was objected, that the testimony of one of the witnesses was improperly admitted, because he referred to a memorandum to refresh his memory. This is always permitted and is unobjectionable. It was also objected, that the notice given by the defendant should have been in writing. It is a sufficient answer to say, that the statute does not require that it should be in writing. The judge however, decided the notice was defective, because it was given to the plaintiff only, and not to the other owners of the adjacent lands. It is true that the statute requires notice to be given to the person or persons in possession of the lands or meadows adjoining; but it seems to me that the plaintiff cannot object to the want of notice to others, since it was given to him, particularly as no fence was removed, but that between the land of the plaintiff and the defendant. But if the judge erred in this particular, the defendant is not prejudiced by the decision, if I am correct in the view I have taken of this case. There is another view of the case, which is sufficient to sustain the verdict, even if l am in error as to the law as above laid down. It is this: that the defendant not only took away his fence with the declared intention to injure the plaintiff, but, lest his cattle should not destroy the plaintiff’s crops voluntarily, his wife and son drove them from the highway into the field, near the plaintiff’s crops ; and when they were actually committing the work of destruction, the de [149] fendant himself, not only did not turn them out, but by threats prevented others from driving them out of the plaintiff’s fields. On the whole, the verdict seems to be lawful, arid it certainly is just. Motion for new trial denied.