Mayberry v. Concord Railroad

Bellows, J. There is no evidence of any letting of the pasture to the plaintiff by the owner, Mr. Hatch, or of any permission from him to put the plaintiff’s horse there. March had hired the house of Hatch, but not the pasture; and, of course, neither he nor his agent, Hook, had any control over the pasture, or any authority to permit the plaintiff to turn in his horse. The testimony that Hatch had never objected has no significance, because there is no evidence tending to prove that he had any knowledge that the plaintiff pastured his horse there, much less that he did so, claiming a right to do it. We think, then, there is no evidence on which the jury could have found a license to the plaintiff to put his horse into that pasture; and we are clear, that, on all the evidence in this cause, the plaintiff could have had no defence to an action of trespass by Hatch for breaking and entering his pasture, and the court would have been bound so to instruct the jury. If there had been evidence that the horse had been habitually pastured there, and that Hatch was in a situation to see and know it, there would have been more significance in the absence of any objection by him; but the only evidence is the testimony of the plaintiff’s son, that, ■on the day of the injury, in the evening, he turned the horse into the pasture, and in an hour or two he went on the railroad and was killed ; and his father’s statement that the horse was sometimes turned into the pasture to drink, because it was the easiest way of watering him; beyond this there is no evidence that the plaintiff’s horse was kept in this pasture, and there is absolutely no evidonce whatever that Hatch had any knowledge of its being there at all. It is in truth nothing more than a case of ordinary trespass, and we think the jury could not legally have found that the horse was lawfully in that pasture; and that being the case, the defendant was not bound to maintain a fence against it. This is expressly settled in Chapin v. The Sullivan Railroad, 39 N. H. 53, where the authorities are collected, and we think they are decisive., If the owner of the horse had been in the actual possession of the pasture, having discovered the true owner, it might be a question whether the railroad could have set up a defect in the plaintiff’s title as a defence ; but nothing of that kind is shown here. The plaintiff’s son testifies that Hook told him that they might turn their horse into this pasture when they wished, and also told him that on Sundays they might turn him upon the railroad to feed; but it does not appear that under this, or in any way, the plaintiff claimed the possession of the pasture, or even the right to turn his horse into it. Indeed, there is nothing in the character of the acts proved to distinguish this from ordinary trespasses, and if the plaintiff can recover here it would be a practical overruling of the doctrines of Chapin v. The Sullivan Railroad. Verdict set aside.