action against the owner; they are deemed by the law too insignificant to be noticed.' But if they do other damage while trespassing, their owners are liable, without regard to proof of notice of their mischievous disposition. At common law the owner of land was not obliged to fence against cattle. The owner of domestic animals, such as horses, cattle, sheep, swine, etc., was at common law bound to keep them safely on his own property. If they broke out and got upon the land of another, he was liable for the damage they might do there, without regard to scienter. And this is the rule in the United 1 Bush v. Brainard, 1 Cow. 78; 13 Am. Dec. 513; Caulkins v. Mathews, 5 Kan. 191; Maltby v. Dihel, 5 Kan. 430; Hess v. Lupton, 7 Ohio, 216; Durham v. Musselman, 2 Blackf. 96; 18 Am. Dec. 133; Brown v. Giles, 1 Car. & P. 118; Woolf v. Chalker, 31 Conn. 121; 81 Am. Dec. 175. Contra, Young v. Harvey, 16 Ind. 314; Knight v. Abert, 6 Pa. St. 472; 47 Am. Dec. 478, the court saying: "In this, and perhaps every other American state, an owner of cattle is not liable to an action for their browsing on his neighbor's uninclosed woodland. But it follows not that because such browsing is excusable as a trespass, it is matter of right. It is an immunity, not a privilege; or, at most, a license revokable at the will of the tenant, who may turn his neighbor's cattle away from his grounds at pleasure. Their entry is, in strictness, a trespass, which, for its insignificance, is not noticed by the law, probably on the foot of the maxim, de minimis, or perhaps because it is better that all waste lands should be treated as common without stint. It certainly saves vexatious litigation. The particular loss from it is unappreciable, even as a subject of nominal damages, and would probably be held so, even in England, where waste land is altogether worthless." 2 Woolf v. Chalker, 31 Conn. 121; 81 Am. Dec. 175. A dog, while trespassing on A's land, kills A's cow. The owner of the dog is liable, although he had no previous knowledge of the dog's vi cious propensity: Chunot v. Larson, 43 Wis. 536; 28 Am. Rep. 567. If oxen break the plaintiff's close and kill his cow, the owner is answerable, without proving that he knew they were accustomed to gore: Angus v. Radin, 5 N. J. L. 815; 8 Am. Dec. 626. 3 French v. Cresswell, 13 Or. 418. And see Hahn v. Garratt, 69 Cal. 146; Bullard v. Williamson, 69 Iowa, 416; Lawrence v. Combs, 37 N. H. 331; 72 Am. Dec. 332; Holden v. Shattuck, 34 Vt. 336; 80 Am. Dec. 684. McDonnell v. R. R. Co., 115 Mass. 564; Decker v. Gammon, 44 Me. 322; 69 Am. Dec. 99; Studwell v. Ritch, 14 Conn. 292; Page v. Hollingsworth, 7 Ind. 317; Van Leuven v. Lyke, 1 N. Y. 515; 49 Am. Dec. 346; Stafford v. Ingersoll, 3 Hill, 38; Dolph v. Ferris. 7 Watts & S. 367; Pierce v. Hosmer, 66 Barb. 345; McBride v. Lynd, 55 Ill. 411; Dunckle v. Kocker, 11 Barb. 387; Angus v. Radin, 5 N. J. L. 815; 8 Am. Dec. 626; Holliday v. Marsh, 3 Wend. 142; 20 Am. Dec. 678; Gresham v. Taylor, 51 Ala. 505; Forsythe v. Price, 8 Watts, 282; 34 Am. Dec. 465; Myers v. Dodd, 9 Ind. 290; 68 Am. Dec. 624; McIlvaine v. Lantz, 100 Pa. St. 586; 45 Am. Rep. 400; Indianapolis etc. R. R. Co. v. McClure, 26 Ind 370; 89 Am. Dec. 467; Eames v. R. R. Co., 98 Mass. 560; 96 Am. Dec. 676. "The common law," it is said in Van Leuven v. Lyke, supra, "holds a man answerable, not only for his own trespass, but also for that of his domestic animals; and as it is the natural and notorious propensity of many States. And in many of the states permitting stock to run at large is such negligence on the part of the owner as to bar all right of recovery for any injuries to them, except such as are wanton or willful.2 In other states if the of such animals, such as oxen, horses, sheep, swine, and the like, to rove, the owner is bound at his peril to confine them on his own land; and if they escape and commit a trespass on the lands of another, unless through defect of fences which the latter ought to repair, the owner is liable to an action of trespass quare clausum fregit, though he had no notice in fact of such propensity: 3 Bla. Com. 211; 1 Chit. Pl. 70. And where the owner of such animals does not confine them on his own land, and they escape and commit a trespass on the lands of another, without the fault of the latter, the law deems the owner himself a trespasser for having permitted his animals to break into the inclosure of the former under such circumstances. And in declaring against the defendant in an action for such trespass, it is competent for the plaintiff to allege the breaking and entering his close by such animals of the defendant, and there committing particular mischief or injury to the person or property of the plaintiff, and upon proof of the allegation, to recover as well for the damage for the unlawful entry as for the other injuries so alleged, by way of aggravation of the trespass, without alleging or proving that the defendant had notice that his animals had been accustomed to do such or similar mischief. The breaking or entering the close, in such action, is the substantive allegation, and the rest is laid as matter of aggravation only.' 1 Indiana. - Indianapolis etc. R. R. Co. v. McClure, 26 Ind. 370; 89 Am. Dec. 467; Cin. etc. R. R. Co. v. Street, 50 Ind. 225; Jeffersonville etc. R. R. Co. v. Underhill, 48 Ind. 389; Lafayette etc. R. R. Co. v. Shriner, 6 Ind. 141. Maryland.- Balt. etc. R. R. Co. v. Lamborn, 12 Md. 257; Keech v. R. R. Co., 17 Md. 33. New Jersey.-Vandegrift v. Rediker, 22 N. J. L. 185; 51 Am. Dec. 262; Price v. R. R. Co., 31 N. J. L. 229; 32 N. J. L. 19. New York. -Halloran v. R. R. Co., 2 E. D. Smith, 257; Marsh v. R. R. Co., 14 Barb. 364; Tonawanda R. R. Co. v. Munger, 5 Denio, 255; 49 Am. Dec. 239; Clarke v. R. R. Co., 11 Barb. 112; Terry v. R. R. Co., 22 Barb. 575; Munger v. R. R. Co., 4 N. Y. 349; 53 Am. Dec. 384. Pennsylvania.-R. R. Co. v. Skinner, 19 Pa. St. 298; 57 Am. Dec. 654; Reeves v. R. R. Co., 30 Pa. St. 455; 72 Am. Dec. 713. Wisconsin. - Chicago etc. R. R. Co. v. Goss, 17 Wis. 428; Stucke v. R. R. Co., 9 Wis. 203; Bennett v. R. R. Co., 19 Wis. 145; Galpin v. R. R. Co., 19 Wis. 604. Kentucky.-Louisville etc. R. R. Co. v. Ballard, 2 Met. (Ky.) 177. Massachusetts. - Stearns v. R. R. Co., 1 Allen, 493; McDonnell v. R. R. Co., 115 Mass. 564; Maynard v. R. R. Co., 115 Mass. 458; 15 Am. Rep. 119; Eames v. R. R. Co., 98 Mass. 560; 96 Am. Dec. 676. New Hampshire. -Giles v. R. R. Co., 55 N. H. 552; Mayberry v. R. R. Co., 47 N. H. 391. - Vermont. Jackson v. R. R. Co., 25 Vt. 150; 60 Am. Dec. 246; Trow v. R. R. Co., 24 Vt. 488; 58 Am. Dec. 191. - 2 Indiana. Indianapolis etc. R. R. v. McClure, 26 Ind. 370; 89 Am. Dec. 467; Lafayette etc. R. R. Co. v. Shriner, 6 Ind. 141; Indianapolis etc. R. R. Co. v. Harter, 38 Ind. 557; Jeffersonville etc. R. R. Co. v. Underhill, 48 Ind. 389; Cincinnati etc. R. R. Co. v. Street, 50 Ind. 225. New Jersey.-Vandegrift v. Rediker, 22 N. J. L. 185; 51 Am. Dec. 262; Price v. R. R. Co., 31 N. J. L. 229; 32 N. J. L. 19. Minnesota.-Locke v. R. R. Co., 15 Minn. 351. Maynard v. R. R. Co., 115 Mass. 458; 15 Am. Rep. 119; McDonnell v. R. R. Co., 115 Mass. escape of the cattle is not due to the negligence of the owner, who has used due care to restrain them, he may recover damages if they are killed or injured by the negligence of another, even though they are trespassing at the time. In other states, again, cattle may run at large on uninclosed lands, and one is obliged to fence his neighbor's cattle out, if he desires to be free from their trespasses; and unless they break through a lawful fence, their owner is not responsible. "This rule," says Judge Thompson, "is in force in several of the states; has been modified in some and abrogated in others." 3 The statutes on the subject are various, both in their language and construction, and cannot be set out here. If contiguous California. -Waters v. Moss, 12 Cal. 535; 73 Am. Dec. 561; Logan v. Gedney, 38 Cal. 581. Iowa. - Alger v. R. R. Co., 10 Iowa, 268. Missouri.Gorman v. R. R. Co., 26 Mo. 442; 72 Am. Dec. 220; Hannibal etc. R. R. Co. v. Kenney, 41 Mo. 271; McPheeters v. R. R. Co., 45 Mo. 23; Tarwater v. R. R. Co., 42 Mo. 193. Mississippi. Vicksburg etc. R. R. v. Patton, 31 Miss. 157; 66 Am. Dec. 552; Memphis etc. R. R. Co. v. Blakeney, 43 Miss. 218; Mobile etc. R. R. Co. v. Hudson, 50 Miss. 572; Raiford v. R. R. Co., 43 Miss. 233; New Orleans etc. R. R. Co. v. Field, 46 Miss. 573. Ohio.-Cranston v. Cincinnati etc. R. R. Co., 1 Handy, 193; Kerwhacker v. R. R. Co., 3 Ohio St. 172; 62 Am. Dec. 246; Cleveland etc. R. R. Co. v. Elliott, 4 Ohio St. 474; Central etc. R. R. Co. v. Lawrence, 13 Ohio St. 67; 82 Am. Dec. 434: Marietta etc. R. R. Co. v. Stephenson, 24 Ohio St. 48. South Carolina. - Murray v. R. R. Co., 10 Rich. 227; 70 Am. Dec. 219. 31 Thompson on Negligence, 210. See 1 Thompson on Negligence, 210-215, where a digest of the decisions of the states construing the statutes in regard to fences in the case of injuries to animals is given; Knox v. Tucker, 48 Me. 373; 77 Am. Dec. 233. In Iowa, to entitle a plaintiff to recover for damages caused by defendant's aattle, while running at large, land-owners, by parol agreement, divide the fence between them, such agreement is binding so long as they act under it; and if one fails to make his part a legal fence, and the other's cattle escape into his field, he has no right to impound them. If both parts of a partition fence are out of repair, and it cannot be proved whether the animals entered through the part the plaintiff was bound to keep up or not, there can be no recovery. Where landowners mutually waive the duty of keeping up a partition fence, each is liable for trespasses of his cattle to the other. In an action for a trespass by defendant's animals upon plaintiff's ground, the plaintiff cannot recover, in addition to the actual damages done by them, the cost of keeping them confined after he took them. Nor is the defendant liable for inroads of others' cattle through the breach of fence made by his own, unless occurring under his control. Where the damages were for injuries to the close itself on account of defendant's stallion breaking into it, it was held that they did not bar a subsequent action for damages resulting to plaintiff in consequence of his mare running in said close, having been gotten with foal by said stallion, -the fact of her being with foal not being known, and the damage to plaintiff therefrom, through loss of her work, etc., not having accrued when the former action was tried. breaking into the close of plaintiff and destroying his crops, he must show that the premises trespassed upon were inclosed by a lawful fence. The common-law rule that every man is required to keep his cattle upon his own premises under penalty of answering in damages for injuries committed by them while running at large is not applicable to the wants, habits, and necessities of the people of this state, nor in harmony with the genius of our institutions, and therefore has not been adopted, and is not the law of this state. One who sues for a trespass by cattle upon his land must show that he maintained a sufficient fence: Frazier v. Nortinus, 34 Iowa, 82. A horse in the street, damaging a barn-yard fence while fighting a horse that was inside, is liable, under the Wisconsin statute, to be distrained by the owner of the yard, as "doing damage within his inclosure": Pettit v. May, 34 Wis. 666. 1 Hitchcock v. Tower, 55 Vt. 60. 2 Deyo v. Stewart, 4 Denio, 101. Milligan v. Wehinger, 68 Pa. St. 235. As to partition fences generally, see note to Myers v. Dodd, 9 Ind. 290; 68 Am. Dec. 624. • North v. McDonald, 47 Barb. ILLUSTRATIONS.-Defendants' horse having injured the plaintiff's mare by biting and kicking her through the fence separating the plaintiff's land from the defendants', held, that there was a trespass by the act of the defendants' horse, for which the defendants were liable, apart from any question of negligence on their part: Ellis v. Loftus Iron Co., L. R. 10 Com. P. 10; 23 Week. Rep. 246. Defendant's bull escaped from his pasture onto plaintiff's land, through a gap in a fence which plaintiff was bound to maintain, and there injured plaintiff's horse. Held, that defendant was not liable, as the injury was the result of plaintiff's neglect: Scott v. Grover, 56 Vt. 499; 48 Am. Rep. 814. A and B occupy adjoining lands, inclosed with one fence and forming one field, and A authorizes C to turn cattle into the inclosure, representing to C that he, A, owns the whole. The cattle go upon the land of B. Held, C is liable in trespass for all the damage done by the cattle, notwithstanding that he may have believed that A had full authority so to do: Daniels v. Aholtz, 81 Ill. 440. A and B, adjoining land-owners, made a parol agreement to keep in repair the partition fence, and A leased his land. Held, that A's tenant could not maintain an action against B for damages caused by the latter's animals, which broke through that portion of the fence which A was, by the terms of the agreement, to maintain: Baynes v. Chastain, 68 Ind. 376. The beast of the defendant escaped from his field through an insufficient fence into the field of A, thence into the field of B, and thence into the field of plaintiff, and injured the plaintiff's mare. Held, that the defendant was liable for the injuries, although, as between him and A, the latter was bound to keep the fence between their fields in repair, although the fence between the plaintiff's field and B's was insufficient, and although the defendant did not know that the beast was vicious: Lyons v. Merrick, 105 Mass. 71. The action was for injuries to a colt while lawfully in the pasture of a third person, caused by the defendant's dog, which he had unlawfully taken within the pasture. Held, that no averment of notice of a vicious disposition of the dog was necessary to render the defendant liable: Green v. Doyle, 21 Ill. App. 205. § 1392. Driving Cattle on Highway. As a man has a right to drive his cattle along the highway, and as it is difficult even with care to drive cattle, the principle of the law which required the owner of cattle to keep them out of his neighbor's land at his peril is so far modified as to hold the owner not liable for the trespasses of his cattle |