Francis H. (Francis Hermann) Bohlen.

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territory, or with any law passed or to be passed by the legislature
of this territory, be and the same is adopted and declared to be law
within said territory."

^\ It will be necessary then to examine, first, whether that pro-

vision of the common law of England, above referred to, is appli-


^Accord: Stackpole v. Healy, 16 Mass. ZZ (1819) ; WcUs v. Howell, 19
Johns. (N. Y.) 385 (1822) ; and cases cited in Ingham on the Law of Ani-
mals, § 70, p. 258. In Pennsylvania the common law rule is in force ; Albert
v. Knight, 6 Pa. 472 (1847), except as to uninclosed woodland, though even
here, says Gibson, C. J., "the 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 it is better that all waste lands should be treated as
a common without stint;" Erdman v. .Gottshall, 9 Pa. S. C. 295 (1899). It
is no defense that the defendant used ordinary care and prudence in taking
care of his cattle, he is bound to keep them out of the plaintiff's close.
Tonawanda R. R. v. Mnnqcr, 5 Denio (N. Y.), 255 (1848), per Beardsley,
C. J., p. 267; nor is the sufficiency of the defendant's fence material, since
"the fact that the cattle escaped through this fence by no act of negligence
on the part of the defendant is not a defense." Erdman v. Gottshall, g Pa.

S. C. 295 (1899)-

An owner of land is, however, not liable for the escape of cattle not
owned by him nor "under his control, entering his land and passing thence
to land adjoining it, whether there be a partition fence or not", Cook v
Morea, 33 Ind. 497 (1870), per Worden, J., p. 300.


cable to the people of Nebraska in their condition at the time of the
passage of said act and down to the present time; and, secondly,
whether such provision and principle of the common law are con-
sistent with the several acts of the legislature of the state and late
territory bearing upon the question involved in this inquiry.

For a number of years following the establishing of the terri-
torial government, the settlements were almost exclusively confined
to the near vicinity of the Missouri river and the small streams
emptying into it, where timber for fencing was comparatively plen-
tiful, sufficiently so as to enable the settlers to fence such land as
they desired to cultivate, and by so doing they were enabled to
allow their numerous herds of cattle the free range of the almost
boundless prairie at their doors. But soon the lands were com-
menced to be surveyed and brought into market, and, as the home-
stead law was not yet enacted, nor the wise policy of reserving the
public lands for the use of actual settlers yet adopted, a large number
of tracts of land soon became the private property of individuals,
many of whom had never been, nor ever expected to be, inhabitants
of the territory. Such purchasers of land took an absolute allodial
estate in them. Nevertheless they took such estate subject to any
and all the conditions which nature, the policy of the government,
the undeveloped state of the country, and the state of society had
thrown around it. Among these was the fact that it was the settled
policy of the general government, which owned the surrounding
lauds, to throw them open to free and unrestricted pasturage. This
was to the early settler and emigrant a valuable privilege, but one
which they could not enjoy if each owner of stock was compelled
to stand watch over his cattle to keep them off of each tract of land
which, by reason of entry at the distant land office, should become
the private property of individuals. The cattle could not be taught
to regard the mounds of the government surveyors, nor that invis-
ible line which, according to Blackstone, the common law of England
draws around the possessions of every landholder.

But as emigration continued and population increased, the set-
tlements extended out upon the open prairies where timber for fenc-
ing was not to be had, and w^e then having no railroad communica-
tion with the pineries or the Mississippi river, had each settler been
obliged to provide a fenced pasture for his stock to keep them off
of the lands of others, the settlement of the territory would have
been impracticable. But it being equally impossible to procure fenc-
ing to enclose the cultivated fields, there arose a necessity for a
law to compel the owners of stock to employ herders for its control,
to keep it oft of the growing crops. The proposition to enact such a
law was regarded with disfavor by the inhabitants of the timbered
portion of the state, and for a time strenuously opposed. Hence
the peculiar character of the earlier herd laws, and even now five
of the northern counties are specifically exempted from its pro-
visions, and a method is prescribed by which any county mav at
any time take itself out of such operation by a majority vote of the
inhabitants. But during the entire history of the territory, as well





as that of the state, down to a recent period, it had never been even
suggested that neat cattle were, by virtue of any law or custom,
required to be either fenced or herded ofit' of wild, uncultivated
lands. But the universal understanding, belief, and usage of the
people has been to the contrary.

It is claimed, and possibly with justice, that the time has now
arrived, when, by reason of the great increase in the density of the
population of the state, and the enhanced value of grazing land, the
owners of such lands should be protected in its -exclusive enjoyment,
the same as land sown to crops. If the time has arrived for such
change, the legislature and not the courts is the place where it should
be inaugurated.

It therefore appears to me that the common law of England, in
the respect under consideration, was not ''applicable" to our state
and condition at the time of the framing of our laws and institutions,
even if it can be said to be so now.^

On Rehearing, // Nebraska, f,S3 (1881), Lake, J. : At the first
hearing the principal point respecting the alleged trespass brought
to our notice was whether in this state the owner of domestic ani-

^ J^

^Accord: Little Rock, etc., R. R. v. Finley, 27 Ark. 562 (1881) ; Morris
V. Foraker, 5 Colo. 425 (1880); Studwell v. Ritcli, 14 Conn. 292 (1841);
Sprague v. R. R., 6 Dak. 86 (1888); R. R. v. Geiger, 21 Fla. 669 (1886);
Wagner v. Bisscll, 3 Iowa, 396 (1856); Seeley v. Feters, 5 Gilon (111.), 130
(1848); but this dots not apply when the defendant removes part of the
plaintiff's inner fence, Buckmaster v. Cole, 12 111. 345 (1850), nor where
the cattle escape through a defective fence which by agreement or by statute
the defendant is bound to maintain; Anderson v. Locke, 64 Miss. 283 (1886) ;
Gorman v. R. R., 26 Mo. 445 (1858J; Beinhorn v. Griswold, 27 .Mont. 79
(1902), semble; Kerwhacker v. R. R., 3 Ohio St. 172 (1854) ; Chase v. Chase,
15 Nev. 259 (1880) ; Laws v. R. R., 7 Jones L. (N. C), 468 (i860) ; Timm
V. R. R., 3 Wash. Ty. 299 (1887); Blaine v. R. R., 9 W. Va. 252 (1876);
Pace V. Potter, 85 Tex. 473 (1893) ; Buford v. Houts, 133 U. S. 320 (1890),
scmhle as to lands in Utah, the point actually determined was that unenclosed
Government lands shall be free to those who seek to use them for pasture.
In Alabama it is held that the common law rule is "not in force, being
inconsistent with the statutes in respect to estrays, inclosures, and trespasses
by cattle."

In Illinois and Ohio the common law rule has been restored by statute,
Bulpit v. Mathews, 145 111. 345 (1893) ; Sloan v. Hubbard, 34 Ohio St. 583


But "it follows not that because such browsing is excusable as a trespass,
it is matter of right. It is _an jmmunity, not a_£riviiege_J' * * It is
enough in all reason, that tHe neTgHT5or's cattle sBould have the range of his
forest, without imposing upon him" (the owner of the forest) "the duty of
looking to their safety." Gibson, C. J., Knight v. Albert, 6 Pa. 472 (1847),
plaintiff's cattle, while "browsing" upon defendant's unenclosed woodland,
fell into an ore pit dug therein; Caulkins v. Mathews, 5 Kans. 191 (1869),
dijTilar iacts^ Beinhorn v. Griszi'old , supra, plaintiff's cattle, ranging upon the
" ''jJUlHTa JPllftTfii , "wandered upon detcndant's open mine and mill site and drank
a poison from an open vat thereon ; Christy v. Hughes, 24 ^lo. App. 275
(1887), plaintiff's hogs, sleeping under defendant's Irailding, killed by fall
of overloaded floor; Herold v. Meyers, 20 Iowa, 378 (1866), plaintiff's cattle
strayed into defendant's held and overate the corn growing thereon. As to
the liability of a railway company for running over stock trespassing upon
its un fenced right of wav, compare Kerwhacker v. R. R.. supra, wnth Toiia-
wanda R. R. v. Munger,' 5 Denio, N. Y. 255 (1848), and see Railroad Co.
V. Skinner, 19 Pa. 298 (1852).


mals might lawfully permit them to wander upon and depasture
the unincloscd, uncultivated lands of others. And our opini<jn "on
that branch of the case did not go beyund this, holding that he C(juld.
But, in reality, the record presented the further question, whether
the plaintiff in error had the right ta ^drivc his ^21 '""'^^=' upoij such
lands for the purpose nf pastnrg^p ^yithnii t tU o M^tm^ r' ir. p < M-m i^.mVin >
This is a very different question^ fro m the o ne i^ reviously decj ded,
and we must answer it in thenegaiiiLe,

"^ Will Fe it is~~IfueuiaTT7eIaney would not have been answerable
for indirect intrusions of his animals upon the land in question, he
was not at liberty to drive, or have them driven, and kept there,
against the wish of Errickson, as the evidence shows very conclu-
sively that he did. We know of no law requiring as a condition to
one's right to the exclusive enjoyment of his own estate against the
willful, injurious acts of others, that he shall keep it inclosed by
a fence. No statute, that we are aware of, so declares ; and such is
not the rule of the common law, which has so great regard "for
private property that it will not authorize the least violation of it."
I Broom & Hadley's Com., Am. Ed., 116.-

The theory of the defense to the alleged trespass is shown by
an instruction to the jury, requested on behalf of Delaney, and
which the court very properly refused to give. It was in these
words: "If you hnd that the land in question was uncultivated, wild
prairie land, and uninclosed, and land upon which the inhabitants
of that neighborhood had uninterruptedly herded their cattle and
stock from the first settlement of the country, then the plaintiff is
not liable in this action." Several other instructions of the same
import were also requested and refused ; but the court did instruct
that if the jury found "that Errickson notified Delaney that he,
Errickson, had leased the land in controversy, that he. Delaney, must
keep his stock off the same," and that regardless of this notice "De-
laney drove, kept, and herded sheep thereon," then they should "find
for Errickson whatever damages the stock of Delaney did while so
on the land to the grass thereon." Under the evidence this instruc-
tion was right, and taken together with the rest of the charge, very
properly restricted the jury in the assessment of damages to such
as were shown to have been done by the stock, not when simply
straying upon the land, but when purposely driven there and kept
there through Delaney's agency. Had the evidence merely shown
that the cattle wandered upon the land, there would have been no
cause of action, and the first instruction requested on behalf of De-
laney, which the court refused, would have been proper.

'Accord: Lazarus v. Phelps, 152 U. S. 81 (1S94), where defendant
overstocked the land leased by him with his own cattle and that of others
taken by him for pasture, and permitted them to occupy plaintiff's adjacent
unfenced land; so when the defendant encloses the plaintit'fs land as a
range or pasture, St. Louis Cattle Co. v. Vaught. 1 Tex. Civ. App. 388
(1892), or where the defendant herds his cattle on the plaintiff's open land,
Harrison v. Adamson, 76 Iowa, 337 (1888); as to the distinction between
the ripht to close-herd sheep and to allow cattle to range at large, see
Willard v. Mathesus, 7 Colo. 76 (1883).



Supreme Court of Nezu York, 1848. 5 Denio, 255.

Beardsley, C. J., p. 259: By the statute (i R. S. 353, art. 4), it
may be made the duty of owners of adjoining lands to build and
maintain certain parts of division fences. The like obligation may
also be imposed by contract, or prescription which presupposes an
original contract; and where the duty exists and has been .violated,
the law will give no redress to the party in fault for damages sus-
tained by him in consequence of a defect in that part of the fence
he was bound to make or repair, (i Ch. PI. 544; 2 Saund. 285, n. 4;
I Cowen, 79, note; Shepherd v. Hees, 12 John. 433.) An act passed
in 1838 (Laws of 1838. p. 253), declares that "if any person liable to
contribute to the erection or reparation of a division fence, shall
neglect or refuse to make and maintain his proportion of such fence,
or shall permit the same to be out of repair, he shall not be allowed
To Jume and maintain any action for damages incurred." This cre-

"^^d no new rule, but merely affirmed a well settled principle of the
common law, forbidding a recovery in any case for damages which
t hp -P^gh'genre or positive misfeasance of the party complaining con-

_^riiLuted to bring upon himself.^

-^Where a prescriptive obligation rests on the owner of land ad-

P joining a highway, to fence against cattle lawfully therein, he can-
not maintain trespass for an entry by such cattle through a defect
in his fence. This is well settled.


In the Queen's Bench, 1884. 51 Lazv Times, N. S., 263.

The plaintifif, a labourer, was digging a hole in a garden of a
house adjoining that of the defendant Teape. There was a wall
which belonged to the defendant Teape only three feet high between
these two gardens. The hole was about ten feet deep, and the plain-
tiff was, at the time in question, engaged in doing some work at the

^ Similar statutes are in force in the great majority of those jurisdic-
tions which follow the common law rule; while varying greatly in their
provisions, they in the main fall into two principal classes ; first, those im-
posing a general dutv to fence all cultivated lands. Gregg v. Gregg, 55 Pa.
227 (1868) ; U. P. R.'R. v. Rollins, 5 Kans. 167 (1868) ; Bonner v. De Loach,
78 Ga. 50 (1886); but see Joiner v. Winston, 68 Ala. 129 (1880). Second,
those which deal with the duty to erect partition fences, Rust v. Low, 6
Mass. 90 (1809). In the latter case it was held that such acts were passed
to supply the lack of those "prescriptions to fence" impossible in a newly
settled country, and like such prescriptions imposed the duty only against
cattle lawfully upon the adjoining premises ; accord, McDonnell v. R. R.,
115 Mass. 564 (1874); Lozv v. Wormzvood, 29 Me. 282 (1849); Avery v.
Maxzvell, 4 N. H. 36 (1827); Wood v. Snider, 187 N. Y. 28 (1907), the
plaintiff's failure to maintain a partition fence was no defense to one whose
cattle having escaped from the highway into the adjoining field of a
stranger had thence strayed upon the plaintiff's land.


bottom of the hole. Three dogs belonging to the defendant Teape
had been taken out by the other defendant Swan, and as the defend-
ant Swan was returning with the dogs, the dogs ran through a gate
into a garden adjoining the one where the plaintiff was at work. The
dogs began to run about in playfulness, and one of them, a large
Newfoundland dog, jumped over the wall, and jumped or fell into
the hole where the plaintiff was working at the time in a stooping
posture. The dog fell on the nape of the plaintiff's neck, causing
injuries for which he was confined to bed for three weeks, and he
was unable to work for some time after.

For these injuries the plaintiff', who had refused two sovereigns
offered to him as compensation, brought an action in the Bloomsbury
County Court against the defendant Teape as the owner of the dogs,
and the defendant Swan as being in charge of the dogs when the
injuries in question were received.

The learned County Court judge ruled that there was no evi-
dence to go to the jury in support of the plaintift''s case, and that,
even assuming all the facts as alleged by the plaintiff, he had no
cause of action against either of the defendants; and he gave judg-
ment for the defendants.

The plaintiff now appealed.

Lord Coleridge, C. J. : It seems to me to be clear that the
learned County Court judge was quite right, and it must be manifest
upon ordinary principles of common sense that he was so. An action
under the circumstances of this case is quite preposterous. _ It \yas ^

an action against a person who kept a dog, because the dog, jumping
about plav fully, jumped over a low wall and into a hole where the
plaintiff happened to be at work. On referring to the authorities, it
is manifest that such an action could not be maintained. In Mason
V. Keeling (i Ld. Ravm. 606, the well known case in the time of
Lord Raymond and Lord Holt), it was held that an action would
not lie against a man for mischief done by his dog. unless he knew
that he had done mischief before, or was of a mischievous nature ;
and the same principle has also been laid down by Parke, B., in our
own time. In Broivn v. Giles (i C. & P. 118), it was held that a dog,
jumping into a field without the consent of its master, is not a tres-
pass for which an action will lie. In Beclr.i'ith v. Shordike^ (4 Bur.
2093), it was held that an involuntary trespass may be justified, but
not a voluntan,' one, and though the verdict there was for the plain-
tiff, this arose" from the jury finding that the trespass was an inten-
tional trespass, and not a mere involuntarv' accident.^ The result of
all these cases is, that if a dog. going about, commits an injury or ,
does any mischief, the owner of" the dog wnW be liable only if the
dog was of a mischievous nature and he was aware of that fact; but
if there be no evidence of that, then no action will lie. Here there is
no suggestion of anv proof of the mischievous nature of the dog.
The only thing suggested as a scienter is, that the owner of the dog

^In that case the defendant was himself a trespasser upon the plain-
tiff's close, and his do<? which accompanied him pulled down and killed a
deer kept by the plaintiff in a paddock thereon.


offered the plaintiff a conple of sovereigns as a compensation, but
this was entirely from his good nature, and not because he was liable
in point of law. I am of opinion, therefore, that the plaintiff has
shown no cause of action, and that this appeal should be dismissed.

Williams,}.: I am of the same opinion. If a man keeps horses
and other animals, he is bound to keep them on his own ground; if
he does not he may be liable to an action of trespass. There is an
exception to this when they are on a public highway, as they have
a right to be there, and then the owner is bound to use ordinary care.
But in the case of dogs, pigeons, and the Uke, the case is different: if
a dog, not being exceptionally mischievous, acting in playfulness goes
over another man's land, there is no trespass, and the owner of the
dog would not be liable. Here, so far as the defendants are con-
cerned, the occurrence was purely accidental and involuntary, and no
action lies against them in respect thereof, either as for a trespass or
for any breach of duty.^

Judgment for defendants. Appeal dismissed.

Supreme Judicial Court of Massachusetts, 1844. 8 Metcalfe, 284.
Hubbard, J. : This is an action of trespass quare claustim f regit,
and the only question submitted to the court is, whether it will lie
\ against the owner of horses at agistment, which have strayed from
■0 the agister's field into the plaintiff's, and have done the damage com-
plame^^t. It is contended that this action cannot be maintained,
either at common law or upon the statute, against the owner of the
horses, under such circumstances, but only against the agister. And
the argument urged is, that to constitute a trespass, there must be
an invasion of the property or person of another, by one who is an
actor without right, either wilfully or negligently; and that in the
present case, the act of sending the horses to be agisted was lawful,
and that during the time they were agisted they were under the con-
trol and in the custody of the agister, and not of the defendant.

^Accord: Van Etten v. Noyes, 112 N. Y. Supp. 888 (1908); Buchanan
V. Stout, 123 App. Div. (N. Y.) 648 (1908) ; Woolf v. Chalker, 31 Conn. 121
(1862), senible, p. 128. Contra: Chunot v. Larson, 43 Wis. 536 (1878);
Doyle V. Vance, 6 Vict. L. R. 87 (1880).

In Read v. Edwards, 17 C. B. N. S. 244 (1864), Willes. J., says, p. 260:
"The question was much argued, whether the owner of an animal was answer-
able in trespass for every unauthorized entry of the animal into the land
of another, as in the case of an ox. And the reasons were offered, which
we need not now estimate, for a distinction between oxen and dogs or
cats, on account. — first, of the difficulty or impossibility of keeping the
latter under restraint, — secondly, the slightness of the damage which their
wandering ordinarily causes, — thirdly, the common usage of mankind to
allow them a wider liberty, — and lastly, their not being considered in law so
absolutely the chattels of the owner, as to be the subject of larceny." A
dog may, however, be distrained damage feasant. Bunch v. Kennittgton, i
Q. B. (A. & K, N. S.) 674 (1841); Bodcn v. Roscoe, L. R. 1894, i Q. B.
608, per Cave, J., p. 611.

SHERIDAN c'. hi:ax • 531

But though it is true that the owner of land or of chattels can-
not maintain trespass against a wrongdoer, unless he is in possession
of the land or the chattels at the time of the wrong done, yet it does
not follow, as the converse of the rule, that the general owner may
not be liable in an action for the injury done to another by a bailee
or servant of the owner, though he is out of possession at the time
of the injury. There are cases in which the party has an election
whether to sue the owner of the chattel, or the agent or servant. And
in regard to cattle, which, from the nature and the manner in which
they are kept and employed, are peculiarly liable to trespass upon
others, especial care has been taken for the protection of the rights
of parties upon whom such trespasses may be committed, by giving
thein a remedy, not only against owners, but a process in rem, against
the cattle themselves, when taken damage feasant.

In the case of trespass committed by cattle agisted, which is the
case at bar, it is laid down, by approved writers of former times,
cited by the plaintiff's counsel, that the party injured has his election
to sue either the owner or agister, though he can have but one satis-
faction. Si mcs avers sont en le gard de I. S., et durant cest temps
font trcspas al autcr, il avera trespas vers moie ou I. S. a son election,
mes il n'az'cra satisfaction d'amhideaiix. 2 Rol. Ab. 546, cites 7 Hen.
IV. 31 h. And this is confirmed by Comyns in his Digest, Trespass,
C. I. See also 20 Vin. Ab. Trespass, B.

The defendant's counsel has cited a case from Clayton's Reports,
called Bateman's case, as maintaining a contrary doctrine. But upon
examining that case, it is found merely to affirm the position, that in
case of agist cattle, the agister is liable for trespass committed by
them, without touching the question of the liability of the owner
also to an action. The principal case in Clayton is that of Daivtry v.
Huggins, pp. 32, 33, in which it was ruled, that "if A have the cus-
tody of the goods of B ; as here it was hogs put into the defendant's
yard; if these do a trespass to the land of C adjoining, A shall be
punished in trespass, and this though the owner's servant did wait
upon them ; and here it was proved the servant of A did also wait on
them, and did serve them, therefore they were in his special posses-
sion ; and the like matter was ruled in the case of Stephen Bateman
of Wakefield, for agist cattle, if they do commit a trespass, the owner
of the soil, where, &c. shall answer for that trespass."^