Town v. Lamphire

Kellogg, J. This is an action for the recovery of the penalty provided by the statute, (Acts of 1856, No. 54,- p. 58,) for the restraining of rams from running at large. The statute provides that “ if any ram or rams shall be found with the- sheep of any other person,” betwefen the first day of August and the first day of 'December in any year, '“the owner or keeper of such sheep may recover of the owner or keeper of such ram or rams,” a penalty of five dollars “ for not restraining” such ram or rams from going at large. The evidence on the trial tended to show that the ram escaped into the inclosure, where the plaintiff’s sheep were kept, by reason of the insufficiency of a portion of the division fence between that inclosure and the plaintiff’s land, which it was the duty of the plaintiff to maintain and keep in repair, and by reason of the neglect of the plaintiff to keep this portion of the fence in repair ; and the charge of the court, as well as the whole theory of the trial, rested on the ground that the ne'glect of the plaintiff to maintain and keep his portion of the division fence in repair, if not' qualifying the defendant’s duty to restrain his rams from running at large, should be taken 104 as exonerating the defendant from liability if the rams escaped into the plaintiff’s enclosure in consequence of that neglect. We think that this interpretation and construction of the statute is erroneous, and that the mere neglect of the plaintiff to maintain and keep in repair his portion of the division fence would not affect or qualify the liability of the defendant for not restraining his rams. The defendant’s duty in this respect is absolute and unqualified, — it is to restrain his rams- from going at large, and he shares this duty and the liability arising from the neglect of it in no degree with any adjoining land owner. Th" ~ns and purpose of the statute can be satisfied only by the- of the utmost care and diligence, on the part of the owner or keeper of a ram, to restrain him from going at large within the prohibited time. The act-of 1817 on the same subject was nearly identical in terms with the present statute, (see Slade’s Comp. Laws, p. 506, §§ 1 and 4,) and under that act it was held that nothing short of that which was beyond the control of the defendant, unless it was the act of the plaintiff himself, would excuse the defendant from liability for his ram being found off from his inclosure with the sheep of another person. Hall v. Adams, 1 Aik. 166. We understand Chief Justice Skinner in his opinion in that case, while recognizing the act of the plaintiff as an excuse exonerating the defendant' from liability, to refer to some positive act against which the utmost care and diligence of the owner of the ram could not guard, and not to a mere neglect to keep up a lawful fence on his portion of the division line, This would be such a case as would constitute an implied exception to the statute. The case of Hall v. Adams proceeds on the ground that good faith and ordinary care and diligence are not sufficient to excuse the owner or keeper of-a ram from liability, and that his duty extends to the use of the utmost diligence and care in restraining or keeping his ram within his own enclosure. We regard this construction of the statute as being settled in that case and as being in entire harmony with analogies derived from other provisions of the statute. Towns are authorized by the statute, (Comp. Stat., p. 122, sec. 81,) to make by-laws 105 restraining any animals from running at large on tlie commons and in the highways, under a penalty, and the duty imposed by such a by-law could not bo considered as dependent upon or qualified by the condition of a fence adjoining the common or highway. We are disposed to adhere to the construction of the statute adopted in the case of Hall v. Adams, and to hold that the.penalty is incurred if the ram is found ofi' from its owner’s or keeper’s premises and with the sheep of another, unless it is made to appear ■ 'his was caused by some positive wrongful act of the prosecutor nimself, or could not have been 'prevented by the utmost care and diligence of the owner or keeper. As the trial in the county court was controlled by instructions to the jury-enforcing a different construction of the statute, the judgment of' that court is reversed, and the' ca.se is to be remanded to that court for a new trial. This view of the law of the case renders the consideration of the other points arising from the bill of exceptions wholly unnecessary,