Hooper v. Kittredge

The opinion of the court was delivered by Redfield, J. The important question arising in this case, in regard to the sufficiency of the avowry, is, whether persons, whose lands adjoin each other, — both being under cultivation, and no steps taken towards a division fence, — can either of them impound the cattle, or horses, of the other, which the owner puts into his own portion of the field, and which are thus permitted to go upon the other’s portion, and there do damage. It is not, in this case, alleged that any agreement existed between the proprietors of the several fields not to turn in cattle, but only that, there being no division fence made, and no steps taken by either towards compelling the erection of such fence, the plaintiff turned his horses into his own field, lying in common with that of the defendant. From the manner in which the avowry is drawn, it would seem that the pleader might have supposed, in such case, that the owner of the horses would be in fault, upon the ground that every owner of such animals is obliged to restrain them from running at large, and that, if they are found going at large, doing damage, they may be impounded, notwithstanding the insufficiency of the fences to the inclosure, where they are found doing damage. This is doubtless the rule in regard to the fences adjoining the highway. But in regard to fences adjoining the lands of others the rule is otherwise. The Revised Statutes, page 413, § 16, expressly enact, that “no person shall have aright to impound any beast taken doing damage, [681] unless the fence to the inclosure, in which such beast was taken, shall be legal and sufficient, except fences adjoining the highway, and fences that the owner of such beast is required by law to make and repair.” Now it is obvious that the defect of fences, in this case, is not within either of the excepted cases; nor is here any agreement not to turn in, — which, in the action of trespass, and perhaps replevin, under the old statute, has been construed a dispensation with the necessity of legal fences. We think, therefore, that the avowry is, on this account, fatally defective. The notice, being substantially the same as that in Moore v. Robbins, 7 Vt. 363, we think sufficient, — the present and the former statute, in regard to the sufficiency of personal notice, being almost identical in terms, and altogether so in their import. Judgment affirmed.