Mooney v. Maynard

Hutchinson, J. delivered the opinion of the Court. This case has lain with. the. court for consideration these two years. Some difficulties, have arisen from the. shape in which the questions are presented in the bill of exceptions, and some from the importance of giving a right construction to the statute, which contains. provisions inconsistent with the common law. Two members of the court,not, with us at the first argument,have heard the arguments of this term, and we have arrived at a decision in the cause. It. seems that fences by the sides of four roads that cross each ' other at right angles, inclose a large tract of land, owned by. djf475 ferent people; intlie centre of which isalarge piece of woods,surrounded by[the back fences of the several farms,into which,'as a large common,the several owners turned in their cattle in times of drought and scarcity of feed. That the defendant’s farm lay east of this wood,and the. plaintiff’s farm lay west of it.The plaintiff at the west end of the woods, has a clearing of twenty acres used as a pasture,and not separated by any fence from the piece of woods. The defendant, and those under whom he claims, have supported the fence all the way upon the west side of his inclosure, and adjoining the woods, for twenty years. This fence was out of repair, and the plaintiff’s steers went from said pasture through the woods, into the inclosure of the defendant, and did damage. The defendant impounded them, and the plaintiff has brought his writ.of replevin. The defendant has avowed the taking,and justifies on the ground the steers were doing damage. The plaintiff replies that his steers were feeding in his said pasture, and escaped against his will, &c. and went into the defendant’s said inclosure, through the defect of the fence which it was the duty of the defendant to repair. This was traversed. The exceptions, upon which the ease is brought up to this court, were so inattentively drawn, that neither the testimony referred to, nor the charge of the court, seem very nearly allied to the issue, at least, in some parts thereof. The judge is made to charge as if deciding the weight of evidence when instructing the jury upon the liability of the plaintiff to maintain half of the fence through which the steers passed to do the damage complained of. But, as the instructions upon that point were in favor of the defendant, and the plaintiff obtained a verdict, the defendant is not now at liberty to complain of those instructions. The only part of the instructions to the jury, which would authorize a verdict for the plaintiff, was, that which decided that the plaintiff was entitled to notice from the defendant to make his half of the fence, before his cattle were liable to be distrained damage feasant. This the court consider correct. More than this might have been correct. The jury might have been left at liberty to find the defendant liable by the analogy of prescription, to maintain the whole fence, if they believed that. the defendant, and [476] those under whom he claimed, had upheld the same fence for twenty years, as stated in the testimony. But, surely after so long a support of the fence without charge to the plaintiff, he must not have his cattle impounded before he has notice of a claim that he should make one half of the fence. This we may say with confidence, if the provisions of our statute are to govern. Smalley and Adams, for the plaintiff." J. Smith, for the defendant. But the defendant contends that the statute provisions are.not repugnant to the common law, but are cumulative remedies, and in affirmance of the common law \ and a case is cited from the 6th of Mass. R. 90, Burt vs. Low et al., which shows that the court in that state, consider the common law in full force, notwithstanding their statute. Should we follow that decision it would efiect a great and important change in the concerns of keeping cattle. The cattle of many persons, especially the cows of poor persons, in all parts of the state, have always been permitted to run upon the highways and commons; no man presuming to take, them up damage feasant, unless his own fences would stand the test of the law. And this practice is well warranted by our statute, the provisions of which are so various and extensive, and form such an entire system upon the subject, it must have been intended to supercede the common law. We must not be understood to mean, that a man who might distrain and impound, might not, instead thereof, commence his action at common law. But we do mean, that a man who- could not lawfully distrain and impound, by reason of the defect of the fences, which he ought to keep in repair, cannot maintain an action at common law for the same injury: nor can a man distrain as at common law, unless his part, at least, of the fences is in such repair as the law requires. . These provisions of the statute are particularly noticed in tire-argument of the plaintiff’s counsel, and need not be repeated by the court. The judgment of the County Court is affirmed.